"Freedom's Ramparts on the Sea" The Detention of Asylum Seekers in New Zealand
Human Rights Foundation of Aotearoa New Zealand
Refugee Council of New Zealand Inc.
May 2002
Human Rights Foundation Aotearoa New Zealand
P.O. Box 106343
Downtown Auckland
New Zealandhumanrightsfoundation@xtra.co.nz
www.humanrights.co.nzRefugee Council of New Zealand
147 Great North Rd
Grey Lynn
Auckland New Zealand
Acknowledgements
The Human Rights Foundation of Aotearoa/New Zealand and the Refugee Council of New Zealand prepared this report following the detention of virtually all asylum seekers arriving in New Zealand since September 11. Amnesty International (Aotearoa) New Zealand (AINZ) funded much of the research for the report; however, the report does not necessarily represent AINZ’s views. Other material was gathered by the painstaking efforts of members of Justice for Asylum Seekers and caring refugee advocates who spent many voluntary hours during the summer visiting asylum seekers.
We would also like to thank the Minister of Immigration who met with representatives of our organisations as soon as the effects of the detention policy became apparent. We are also appreciative of the monthly meetings with senior officials in her department. We hope this report will highlight some of the issues which need urgent and ongoing attention at a policy and operational level if New Zealand is to maintain its position as a leader in refugee protection.
Finally, thanks to Thomas Bracken, the writer of our national anthem, for setting the standards we commit to uphold, and whose words provide the title for this report.
Table of Contents
NEW ZEALAND'S LAW RELATING TO REFUGEES
INTERNATIONAL LEGAL STANDARDS REGARDING DETENTION
Scope of UNHCR Guidelines
General Principle
Exceptional Grounds
Alternatives to Detention
Procedural Safeguards
Detention of Persons Under 18 Years of Age
Detention of Vulnerable Persons
Detention of Women
Detention of Stateless Persons
Conditions of DetentionNEW ZEALAND'S REFUGEE POLICY
Response to Political Events
Detention as a Measure of Deterrence
Regional Solutions
Conclusion and RecommendationsAcronyms
ACRP Auckland Central Remand Prison
ADLS Auckland District Law Society
AINZ Amnesty International (Aotearoa) New Zealand
ARC Auckland Refugee Council
AUT Auckland University of Technology
B&I Border and Investigations
CYFS Child, Youth and Families Service
DCJ District Court Judge
LSA Legal Services Agency
MRRC Mangere Refugee Resettlement Centre
NZIS New Zealand Immigration Service.
OI Operating Instructions
RAS Refugees as Survivors Centre
RSAA Refugee Status Appeal Authority
RSB Refugee Status Branch
UNHCR United Nations High Commissioner for Refugees
FREEDOM'S RAMPARTS ON THE SEA:
DETENTION OF ASYLUM SEEKERS IN NEW ZEALANDThis report outlines concerns arising as a result of the detention of nearly all asylum seekers in New Zealand since September 2001, and the impact this has had on New Zealand’s refugee system. It does not purport to be an exhaustive analysis of contemporary detention. Rather it highlights the issues which need urgent attention.
[1] Refugees1 arrive in New Zealand in one of three ways. Mandated refugees come on the quota programme by arrangement with United Nations High Commissioner for Refugees (UNHCR). This group has been granted refugee status in their country of first asylum and are granted permanent residence on arrival in New Zealand. Convention refugees/asylum seekers arrive in New Zealand and then claim refugee status. The third group are resettled under the family reunification policy.
[2] Comparatively, New Zealand receives very few asylum seekers. In 2001 1,292 asylum applications were lodged in New Zealand. Compared with the rest of the world this is a low number:2
Country Asylum applications lodged New Zealand 1,292 United Kingdom 52,140 Canada 39,158 Australia 10,341 Germany 82,787 Europe 383,412 United States 56,823 [3] It is recognised that not all refugee claimants are granted refugee status. Economic migrants do not come within the Refugee Convention and some claims lodged are abusive. However, in New Zealand, the problem is not so acute that it justifies almost blanket detention, as is currently the case.
[4] Indeed, there is agreement that the refugee determination statistics are skewed by the high proportion of manifestly unfounded cases which are not made at the border, and therefore are not detained. The success rate for border claimants is much higher.3
NEW ZEALAND'S LAW RELATING TO REFUGEES[5] New Zealand has an international obligation to consider all refugee claims made at the border and after arrival. Refugee determination procedures are set out in the Immigration Act 1987 (as amended) (“Immigration Act”). Significantly, New Zealand cannot remove a refugee status claimant from New Zealand while his or her claim is being determined as s129X Immigration Act ensures compliance with the non-refoulement provision of the Refugee Convention.
[6] Refoulement refers to the return by a State, in any manner, of an individual to the territory of another State in which he or she may be persecuted or face the risk of torture. Refoulement includes any action having the effect of returning the individual to a State, including expulsion, deportation, extradition, rejection at the frontier, extra-territorial interception and physical return. The prohibition of refoulement of refugees (the principle of non-refoulement) is fundamental to refugee law and is also generally considered part of customary international law.4
[7] The Immigration Act does not specifically provide for the detention of asylum seekers. Despite the 1999 Immigration Amendment Act, there remains no specific provision in the Immigration Act for detaining refugee status claimants while their claims are processed.
[8] The NZIS is detaining asylum seekers under s128 of the Act. Section 128 is a section that focuses on removing people from New Zealand when they have been refused a permit at the border. The relevant parts of s128 are ss128(1) and (5). Most pertinent is s128(5):
[9] Subject to subsection (7) of this section, any person to whom this section applies may be detained by any member of the Police and placed in custody pending that person’s departure from New Zealand on the first available craft.
[10] The Immigration Act allows NZ to detain people suspected of terrorism or being a risk to New Zealand via s128B. Thus, New Zealand can protect its border and does not need to detain refugee claimants under s128 to do so.
[11] Section 128B allows the NZIS to detain people at the border if they are suspected of constituting a risk to national security and/or public order. This section allows the police and Immigration Officers to legally detain those asylum seekers who are thought to pose a genuine risk to national security and/or public order, provided there are reasonable grounds to do so.
[12] The NZIS has declined to make use of s128B in this manner. It has overlooked it in favour of s128, because it considers s128B requires a “higher threshold” of reasonable grounds (to be proven by officials detaining people).5
Operational Instructions and other New Zealand Immigration Service documents
[13] The New Zealand Immigration Service issues Operational Instructions (OI) to its officers regarding the interpretation of policy and the exercise of discretion. Since September 2001 three sets of OI have been issued. (These can be found in Appendix 1).
Operational Instruction: Exercise of discretion pursuant to s128(5) of the Immigration Act 1987 to detain persons who have claimed refugee status, dated 19 September 2001;[14] Since October 2001, nearly all asylum seekers have been detained while their refugee claims are processed. Refugee claimants are currently detained in Auckland Central Remand Prison (ACRP) or in the Mangere Reception Centre (Mangere Detention Centre) pursuant to s128 of the Immigration Act 1987 and New Zealand Immigration Service Operational Instructions. By mid April, over 100 people had been detained; 25 in ACRP, 101 at MRRC. Of these 57 have been released on permits and 25 have been granted refugee status. 18 had been deported, although decisions are pending on a number of cases.Operational Instruction: Application of s128(5) Immigration Act 1987 to Children and Young Persons under 18 years of Age, 24 September 2001; and
Operational Instruction: Review of Warrants of Commitment for those detained pursuant to s128 Immigration Act who have lodged claims to refugee status.
INTERNATIONAL LEGAL STANDARDS REGARDING DETENTION[15] While the 1951 Convention does not contain specific provisions on the treatment of asylum seekers, it is an important starting point for considering standards of treatment for the reception of asylum seekers, not least because asylum seekers may be refugees. Further, the enactment of ss129X(2) and 129D of the Immigration Act make it clear that Immigration officials are to consider the Convention in their decision-making. It is also important to note that articles 1C-F of the Convention set out grounds for exclusion of persons from refugee status and these include people who have committed serious non-political crimes and crimes against humanity.
[16] There are also a number of other United Nations documents relevant to the issue of detaining refugees including:
1. UNHCR “Guidelines on applicable Criteria and Standards relating to the Detention of Asylum Seekers” (1 February 1999), (“UNHCR Guidelines”) [see Appendix 2].[17] These documents have narrowly defined the circumstances in which the detention of asylum seekers may be “necessary”. National security is the underlying justification for all of the designated circumstances. It is clear that detention ought to be the exception, not the rule.2. Executive Committee of the UNHCR “Conclusions on Detention of Refugees and Asylum Seekers” Conclusion 44, 37th Session (15 October 1986), (“Conclusion 44”) [see Appendix 3].
3. Executive Committee of the UNHCR “Detention of Asylum Seekers and Refugees: the Framework, Problem and Recommended Practice”, The Standing Committee of the UNHCR, 15th Meeting, 4 June 1999, designed to summarise the various applicable principles under the Convention. (“Framework document”) [see Appendix 4].
[18] Assessing the current situation against the UNHCR “Guidelines on applicable Criteria and Standards relating to the Detention of Asylum Seekers” (10 February 1999) highlights a number of systemic and operational shortcomings within New Zealand’s refugee and asylum system. A summary of each guideline is given in the boxes below,6 this is followed by an exploration of the current situation. A copy of the full Guidelines is attached as Appendix 2.
Guideline 1: Scope of the Guidelines
[19] Outlines that they apply to all asylum-seekers in or being considered for, detention or detention like situations.
[20] This is the situation facing most asylum seekers.
Guideline 2: General Principle
[21] As a general principle asylum-seekers should not be detained. 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.
[22] The Guidelines further elaborate that detention should 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 (Guideline 4). Contrarily, under the current NZIS OI, the only option pursued is detention.
Further, in assessing whether detention 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 (Guideline 3). If judged necessary it should only be imposed in a non-discriminatory manner for a minimal period. However Border & Investigations (B&I) state that the security determination made at the airport depends, in part at least, on the nationality of the asylum seeker.7[23] The police and SIS advise the NZIS that because of a lack of resources they need at least 30 days to process security checks,8 although more resources are now being allocated to the task. In practice, this means asylum seekers will be detained for at least five weeks.
[24] Initially there seemed to be disagreement between the Minister of Immigration and officials as to when asylum seekers can be detained. The Minister maintains that detention is only admissible when there are security concerns, or questions regarding identity9 whereas officials have said detention is justified for a range of reasons. These include an early indication that cases were of little merit,10 that more information is needed regarding “background and travel”11 i.e. the route taken to get to New Zealand,12 whether people are considered likely to abscond or public health concerns.13
[25] There are particular concerns regarding assessment of merit. NGOs believe it is inappropriate for B&I Officials to be in contact with the Refugee Status Branch (RSB) on the merits of a case, especially as the Immigration Act specifies that RSB officers are not immigration officers. Some senior officials, but not B&I, support this view.14 The UNHCR Guidelines suggest that detention is admissible in order to establish the basis of a claim – no mention is made of early assessments of merit. This highlights different positions and a lack of coherence or comprehensive policy in the NZIS’s approach to the issues. These issues are further explored in the section below.
Guideline 3: Exceptional Grounds for Detention
[26] 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.
[27] 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.
[28] The permissible exceptions to the general rule that detention should normally be avoided must be prescribed by law.
[29] Detention of asylum seekers may only be resorted to, if necessary: to verify identity; to determine the elements on which the claim for refugee status is based; in cases where asylum seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities; or to protect national security and public order.
[30] It has long been accepted in New Zealand and elsewhere that asylum seekers are unlikely to be able to obtain passports in their country of origin and that they are likely to travel under an assumed identity for safety reasons. As noted in the UNHCR Guidelines, “asylum seekers…… may not be in a position to comply with the legal formalities of entry”. It is therefore dismaying to find senior officials expressing concern about claimants producing documents after they arrive; thereby showing a lack of understanding of why claimants travel on a false identity or source genuine identification documentation from overseas.15
[31] The Guidelines allow that asylum seekers may be detained exclusively for the purposes of a preliminary interview to identify the basis of the asylum 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.
[32] In terms of national security, the exception should be invoked only 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 take advantage of carriers’ liabilities or to dissuade those who have commenced their claims from pursuing them, is contrary to the norms of refugee law. Nor should it be used as a punitive or disciplinary measure for illegal entry or presence in the country. Detention should also not be used for failure to comply with the administrative requirements or other institutional restrictions related to residency at reception centres, or refugee camps.
[33] Escape from detention should not lead to the automatic discontinuation of the asylum procedure, or to return to the country of origin, having regard to the principle of non- refoulement. Given the mandatory detention policy operated in Australia it is inappropriate for escapees from detention centres there to be regarded as security threats in New Zealand, and debarred from access to the asylum system here, as has occurred in at least one case. Indeed, it is also worth noting that a number of escapees from Australia’s detention centres have been found to be genuine refugees in New Zealand.
Guideline 4: Alternatives to Detention
[34] 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.
[35] Detention should not be the norm when dealing with asylum seekers. Yet, other options such as monitoring requirements, provision of a guarantor/surety, release on bail or the operation of an open centre do not appear to have been explored in depth by authorities.
[36] Although there were early discussions regarding using the Auckland Refugee Council (ARC) Hostel in Glendene as an alternative to detention, these faltered. Understandably for an NGO opposed to detention in principle, the ARC refused to keep claimants at the hostel under s128 of the Immigration Act. For example, refugee claimants could be released with police reporting requirements (when there are criminal charges regarding illegal entry) as has happened several times over the last year. Asylum seekers who are released from MRRC are able to move to the Hostel if there is space available.
[37] Detention is also a costly option. A select Committee of the NSW Parliament costed alternatives to incarceration including detention and transitional housing. The average cost of community based programmes (per person per day): Parole: $Aus5.39, Probation $Aus3.94. Home Detention: $58.83. Clearly, these measures are more economical and humane than the current arrangements.16
Guideline 5: Procedural safeguards
[38] Asylum seekers should be entitled to the following minimum procedural guarantees: prompt and full communication of any order of detention, the reasons for it and their rights; to be informed of the right to legal counsel; to have the decision subjected to automatic review; to challenge the necessity of the deprivation of liberty at the review hearing; to contact and be contacted by the local UNHCR Office, available national refugee bodies and an advocate.
[39] Apart from rejecting the notion of detention other than in exceptional circumstances, NGOs have many concerns about the lack of procedural safeguards in the current arrangements.
[40] The detention of asylum seekers is administrative. Only one person, (the Market Manager of B&I) has the power to detain and release claimants, which appears to breach natural justice and results in delays in decisions being made. This has been commented on internationally since 1999 when the Immigration Amendment Act was passed.17 Admittedly, after six months, the system of reviewing decisions has become somewhat clearer and more systematic, but only for those with a strong advocate. However, refugee claimants and their lawyers are continually frustrated by delays and the quality of decision-making.
[41] Under the statutory scheme, after 28 days the claimant is brought before a District Court Judge (DCJ) every seven days to have their warrant of commitment extended. The DCJ must be satisfied that the person is still a person to whom s128 applies. Until the NZIS issues a permit, the DCJ has no choice but to extend the warrant of commitment. Some DCJs have expressed frustration that they cannot release claimants. Thus there is no judicial input unless it can be shown that the detention is unreasonable via judicial review or habeas corpus in the High Court.
[42] There is no legal aid available for judicial review or habeas corpus proceedings for detention of refugees. This makes it simply unfeasible for refugee claimants to take proceedings to the High Court.
[43] Asylum seekers are not always told why they are being detained and if they are, they are often too dazed to understand. At times, officials have given conflicting interpretations of the OI when advising counsel of the reasons for detention. Initially, this occurred frequently, resulting in frustration and confusion. On arrival at the airport, couples are separated. Not infrequently, the women are taken to MRRC and the men to the ACRP. The Refugee As Survivors (RAS) Centre reports it is not uncommon for them to arrive in the morning to find a woman distraught, not knowing where her husband is, or why he has been imprisoned. No extra resources have been made available to deal with this situation. More positively, on arrival at MRRC, asylum seekers are given an information pack, which includes information about their rights.
[44] An essential aspect of ensuring procedural safeguards is access to a competent advocate. Initially detainees at MRRC and in the ACRP were not being advised of their right to counsel. When asked if claimants had been advised of their right to a lawyer an official responded: “I don’t feel they think they need one”.18 Officials agree that there were often unacceptable delays in claimants initially obtaining representation.19
[45] There have also been serious problems regarding the quality of legal representation, which were initially brought into sharp focus in regards to the Tampa refugees. The NZIS gives asylum seekers a list of lawyers to contact or a lawyer is assigned by the Legal Services Agency. There are concerns that lawyers on the NZIS list do not always have experience in refugee cases. This is not acceptable in a country with an overall very good determination system and a high level of education available to lawyers. Examples of concerns have been lawyers not knowing:
[46] The ADLS made a proposal to the LSA in February 2002 for an accreditation scheme for refugee lawyers. The proposal is based on the Criminal Legal Aid model; drawing up a list of lawyers who should be used in cases. It has been suggested that solicitors on this list should at a minimum have represented 10 Refugee Status Branch cases, 10 appeal cases and have shown a commitment to relevant continued legal education. Unfortunately this process is unlikely to be completed before the end of the year.
- there was a definition of a refugee
- how to fill in a Confirmation of Claim form
- where Afghanistan was
- how to prepare a client for a Refugee Status Branch interview and simply reading the questions in the Refugee Confirmation of Claim form back to his client
- about the issues of exclusion, the use of interpreters or unaccompanied children.
[47] On the other hand, the way in which the RSB and Refugee Status Appeals Authority (RSAA) have prioritised applications from detainees, is very positive. Concerns about inadequate preparation can usually be attributed to poor legal representation. However, there are concerns that once the extra staff employed by the RSB to clear the backlog leave the NZIS in late June, non-detained asylum seekers will face unacceptable delays in having their claims heard, again creating a backlog.
[48] In order to have their claims adequately presented, asylum seekers need to be able to contact their lawyers and have their cases heard in appropriate conditions. It is difficult for asylum seekers to access a fax machine at MRRC and until recently there were limited opportunities for private telephone calls. Facilities at MRRC are not appropriate for hearings.
[49] The situation in ACRP is even more acute. Asylum seekers have very limited access to phones or faxes to source relevant information to support their claims or to contact their lawyers. This is further complicated by international time differences, making it difficult if not impossible to access relevant people outside New Zealand by phone.
[50] Making international calls costs substantial amounts of money. Although asylum seekers often arrive with enough money to progress their claims, most of this is held at the Papakura Police Station, with a minimal amount being allowed in the prison. Asylum seekers worry about what has happened to their funds, fearing they have lost them. In effect it is almost impossible for them to access money when they need it and they must resort to borrowing money from visitors to buy phone cards etc. It cannot be stressed enough, that these calls are essential to enable asylum seekers to get the information needed for their release and support their refugee claim.
[51] Asylum seekers also have limited access to their lawyers. Many lawyers are only contactable by cell phone, and those in the ACRP are not allowed to call cell phones. Material faxed to the prison by lawyers is not always delivered to asylum seekers and they are sometimes unaware of the dates of their hearings. Both asylum seekers and lawyers have complained of delays in access to each other during visits to the ACRP. These are further exacerbated by the meetings having to be during regular prison visiting hours, and it is often difficult for lawyers to visit at set times.
[52] All of these issues highlight the concerns expressed elsewhere of a lack of accountability and transparency when private companies are involved in detention.20 (It is interesting to note that Chubb Security, the company providing security guards at MRRC, is also providing the contracted security services for the refugee camps on Nauru Island).21 Initially NGOs visiting ACRP had a reasonable relationship with the prison authorities, but this deteriorated, along with conditions for asylum seekers, over the summer holiday period.
[53] Usually UNHCR recommends detainees contact or are contacted by the local UNHCR office. The commencement of the application of the OI roughly coincided with the decision to close the NZ UNHCR office and scale down the agency’s involvement here. Although the office in Auckland was notified when arrivals were detained, the office has had little involvement with detainees, recommending that the Refugee Council of New Zealand can well fulfil the monitoring role of UNHCR. (Currently, notification is sent to the UNHCR Office in Canberra).
[54] To monitor adequately, NGOs need to be notified of new arrivals. Despite concerns that doing so would breach the Privacy Act having been allayed, the NZIS states that it is only able to provide the Refugee Council of New Zealand with weekly arrival and detention statistics. Despite earlier giving assurances on several occasions that the Refugee Council would receive more specific notification,22 no NGO has been given this information, making it difficult for this role to be carried out. Rather NGOs visiting MRRC or the prison have to rely on information from other asylum seekers. At ACRP nobody officially seems to know how many asylum seekers are detained there at any one time. Requests for this information are unanswered by officials. Monitoring, in effect, is intermittent as it largely relies on the voluntary efforts of NGOs.23
Guideline 6. Detention of Persons under the Age of 18 years:
[55] As a general rule, minors who are asylum seekers should not be detained. During detention children have the right to an education, preferably outside the detention premises. Provision should also be made for recreation and play, which is essential to a child’s mental development and to alleviate stress and trauma.
[56] In addition to the boys from the Tampa who were detained at MRRC, a number of other children of all ages have been detained. Some arrive with their parents, others alone. No consideration seems to have been given to alternatives to detaining young children at MRRC, despite the Minister of Immigration claiming that they were not able to detain children.24 Some children have stayed at the Centre for several months, whereas in Sweden children are detained for a maximum of six days.25
[57] More seriously, after an arduous journey and questioning by poorly informed officials into the early hours of the morning, two boys of 16 and 17 from the Tampa were detained at ACRP. No serious reasons for their detention were given and other facilities to accommodate them were not explored. They were released after the intervention of several NGOs, lawyers and government Ministers. But there was no questioning by the DCJ of whether boys of this age should be detained in a remand prison. Yet, at about the same time, there were press reports of a judge in Horowhenua in a criminal case involving similar aged boys who had been held at a police station over the weekend, lamenting the lack of facilities for the detention of young people. Refugee and asylum seeking children must have the same rights as other children in New Zealand.
[58] More positively, the NZIS quickly developed a set of Guidelines of the Treatment of Un-accompanied Children, and endeavoured to abide by the Statement of Good Practice set out by the Save the Children and UNHCR Separated Children in Europe Programme. However, a number of issues remain unresolved. In common with other child asylum seekers, the boys from the Tampa are anxious to be reunited with their families if at all possible. Without special directives they are not able to sponsor their immediate family members for residence under the Family Sponsored Stream as they do not meet the policy requirements of being over 17 years of age, having been a New Zealand resident for three years and able to provide accommodation, financial support and repayment of costs involved in applying. NZIS is now reviewing the Tampa cases and will make recommendations to the Minister for special directions to bring their family members to New Zealand. This however does not resolve the more general issue of how child asylum seekers, or other separated refugee children can bring their families to New Zealand. Arguably this practice breaches the UN Convention on the Rights of the Child.
[59] Further, although Children Youth and Families Service (CYFS) has invested heavily in the care of the Tampa boys, only two have individual guardians. The rest are living in a group home, no longer considered an appropriate option for New Zealand children.
[60] Whilst the children arriving from the Tampa were provided with an education, other children only just began attending class in March. Special arrangements have had to be made at the largesse of Auckland University of Technology (AUT) staff while waiting for approval from the Ministry of Education for extra resources.
Guideline 7: Detention of Vulnerable persons
[61] 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:
Unaccompanied elderly persons.[62] Most refugees and asylum seekers have been tortured or experienced traumatic events; this is what sets them apart from other migrants. At MRRC, it is difficult to access the services of mental health professionals available to quota refugees, nor do they have the support of mental health professionals in preparing their claims. The RAS Centre has no extra funding for detained asylum-seekers and has had to consider closing their doors to them.26Torture or trauma victims.
Persons with a mental or physical disability.
[63] There has been at least one unaccompanied elderly man over 60 years detained at MRRC who could have been released into community detention. There was also a claimant who was wheelchair bound. NGO visitors to ACRP report with concern detainees exhibiting many symptoms of trauma: nervousness, anxiety, aggressive attitudes, muteness, distrust and withdrawal. These people should not be detained and urgently need access to appropriate professional services.
Guideline 8: Detention of Women
[64] 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.
[65] Women asylum seekers should be granted access to legal and other services without discrimination as to their gender, and specific services in response to their special needs.
[66] One of the first asylum seekers to be detained at MRRC was a young, single woman of 18. There are long held concerns about young, single women staying at MRRC, as there are inadequate measures to ensure their safety. Despite the arrival of single women in October, and concerns being expressed by NGOs from the outset, it took a serious incident involving the harassment of a single woman by a staff member and other single men at the Centre in February, for the issues to be taken seriously.27 However there are still inadequate assurances of safety for single women.
[67] Officials agree that there is no need for pregnant women and newborn babies to be detained at MRRC.28 Nevertheless, several pregnant women have stayed at MRRC initially without adequate medical treatment. In Christmas week, a baby was born into detention, although soon after her birth she was moved to the ARC Hostel. Of more serious concern was a pregnant woman with diabetes being detained at the airport for a long period and faced with an unacceptable delay before seeing a doctor at MRRC.
[68] Recently, a woman was detained who is 9 months pregnant and was very anxious that she was to have her baby in detention. On her lawyer inquiring whether NZIS would consider releasing her and her husband, the officer’s response was unsympathetic: he said that she had “chosen” to come to New Zealand 9 months pregnant.
Guideline 9 Detention of Stateless Persons
[69] As far as the NGO community is aware, no stateless people have been treated differently than any other detainees in recent months.
Guideline 10: Conditions of Detention
[70] Conditions of detention for asylum seekers should be humane with respect for the inherent dignity of the person. They should be prescribed by law.
[71] In stressing this, UNHCR notes that segregated facilities should be provided for
a) men and women, and[72] They should be able to receive visits from friends, relatives and legal counsel, receive appropriate medical treatment, conduct some form of exercise, and have the possibility to continue further education or vocational training.
b) children and adults (unless these are relatives),
c) asylum seekers from convicted criminals.[73] To treat asylum seekers humanely with respect for their dignity means that officials working with asylum seekers should be well informed about New Zealand’s commitments under various human rights treaties, and be aware of the issues involved in the asylum seeking process. It is not appropriate for customs officials working with immigration officers to make facetious, unnerving and insulting comments about members of any nationality or religion, nor is it appropriate for senior officials to deny that this would be possible when complaints are laid.29
[74] Initially there were many concerns regarding the detention process. The basis on which decisions were made as to where asylum seekers were detained (the ACRP or MRRC) were not clear, as decisions are made on a case-by-case basis. What is clear is that anyone arriving without a valid travel document is detained. Understandably, security concerns also seem to figure highly. In 1999, when inquiring about the need for resource consent for the use of MRRC as a detention facility, the NZIS informed the Manukau City Council that the “Department of Correction has advised that the degree of risk and associated security requirements decreases if males are separated from females”.30 It is unclear whether this policy continues to be followed or how it was derived, but families continue to be separated and people spend a relatively long time at the airport or Papakura Police Station before being moved to MRRC or the ACRP.
Treatment at the Airport
[75] Asylum seekers face long waits at the airport. There does not appear to be any system to offer food or water during this time, although some detainees report individual police officers sometimes buy food themselves, especially for children. The Red Cross provided some blankets for the use of asylum seekers, but these do not appear to be routinely offered to arrivals. The following case involving a couple and two small children who were held at the airport for a day and a half illustrates concerns:
A couple had been on route for 19 days with their two children and she was 6 months pregnant. The elder boy had been very ill in Malaysia and had vomited blood. They had little money and it had cost them ‘quite a lot’ for a doctor. They arrived in New Zealand at 1:00pm. Their luggage was checked and they were asked how they had come to NZ. Then they were told that there was no time for an interview as someone was there being interviewed and there was no interpreter. They were sent to the transit lounge to sleep the night. They were offered no food, drink or water and nothing was given to the children. A person who worked at the airport brought a blanket for the children. At 8:00am they went down and an Immigration officer came with an interpreter. They were offered no food before the interview which lasted approx. 2 hours. (They were interviewed separately). They had two interviews; the first was recorded on tape and the second involved filling out refugee forms. Different people conducted the interviews. After the first interview, the interpreter told them that they would be detained in a camp which made them very afraid as they had heard stories about Australian detention camps.[76] In another caseThey were sent back to the transit lounge and told to come back at 3:00pm which they did and then they waited until 5:00pm. They were then taken to the police and their fingerprints and photos were taken. They were very worried about this but the policeman was very kind and explained that detention in New Zealand was not like Australia. This policeman also brought beds for the children when he saw the parents making beds for them on the floor. He asked if they wanted a lawyer and bought them a McDonalds fish burger, lemonade and chips.
The policeman called a lawyer, chosen because he spoke French. He said he would come to see them in 3 days time, after the weekend. They waited for another 2 hours until approx. 8:00pm but they felt much better because they had eaten. The wife was worried because she is pregnant and her baby had stopped moving and she thought it might have died.
A young couple landed at 8:30am after a weeklong journey sleeping as necessary in airports. They were told by their agent to wait in the coffee shop where they bought a sandwich. At 5:00pm, they decided to go through as they felt the agent wasn’t coming back. Two women interviewed them at the airport. One was very aggressive banging the table and saying things in a very angry voice like “You’re telling the truth! If not, you will go into prison or go back to your country on the next plane.” When spoken to like this, they were very scared. When the aggressive woman asked the man where he had been sitting on the plane, he said he couldn’t remember the seat number, (because he was very tired at this stage) but that he could describe the position. She went off to check, came back, and insisted that he was lying. He told her that he was telling the truth and, when she again checked, she found that he was in fact correct.At the Papakura Police StationThe interpreter took on the aggressive manner of the Immigration officer as well.
The Refugee Officer was ‘very nice’, but by the time they did the Refugee forms (around midnight) they were very tired, had sore eyes and a headache. They were hungry and feeling dizzy, as they had not eaten since the morning sandwich.
[77] Essentially, police treat asylum seekers as remand prisoners at Papakura Police Station. They have no separate facilities or guidelines for them.31 The couple above continue their story, revealing concerns about treatment at Papakura Police Station:
The Police at the airport were friendly when they took their fingerprints and photos. After this was done, they waited 1½ - 2 hours until about 2am when they were taken to Papakura Police Station. The man fell asleep in the police car, as he was so tired.[78] Similarly, there are major concerns about the way asylum seekers are treated at ACRP, which follow.They were put into separate cells with no pillow but were given a blanket. The woman asked for her socks because she was cold and they were just inside her bag. She was refused permission.
They were given breakfast the following morning and the woman asked to see her husband. She also asked an officer if she could make a call to a lawyer. He said he would see what he could do, came back 5mins later and told her, “Don’t worry about it, you don’t have to ring a lawyer.” After lunch, they were allowed to see each other for 2 – 3 hours before being separated again.
The woman developed severe pain in her right side, banged on the door, and was crying because of the pain. A cleaner went to tell the police officers. The cleaner said that she’d be back in 10mins, but did not return. About an hour later, she heard a guard and went to the door again. He opened the door but when she told him her problem, he said that she was lying. She replied, “Why would I lie. If I was lying, I wouldn’t be crying. I need to see a doctor.” The policeman came back about 1½ hours later with another policeman and they took her to a medical room. A doctor checked her, took her temperature and blood pressure and then told the policemen that she needed to go to hospital. They took her to a room for about 2½ hours again and then they came and said that she needed to wait for a female officer to come. They left and returned after 10mins and took her to her cell. She waited there for what seemed like a long time and then the two policemen returned.
She asked to see her husband to let him know that she was going to hospital, but this was refused. She asked for her shoes for the hospital and the same policeman who had said she was lying about the pain said that she didn’t need shoes but the other policeman went and got them for her. No female officer came, so these two policemen took her to the hospital. When they went to the car one officer said, “I hope you don’t do a runner on us.” He wanted to handcuff her but the other officer said, “No! She’ll be alright.” She saw the time on the clock in the car it was 12:10am. The officers went into the examining room but the doctor asked them to wait outside. They took blood, made tests, and told her that she would be transferred to a ward. This was at 3:00am. Security was placed at the ward door during her entire stay. She was on the drip. The pain cleared by Tuesday night, she had an ultrasound on the Thursday and was sent to MRRC escorted by one male and one female police officers and a guard that afternoon arriving at 5:10pm. She was told that she might have had an infection.
She had only the clothes she had been wearing for another two days and then one of the guards went to collect her bag at the police station. The police said that he couldn’t have the bag as it was under the husband’s name and only released her handbag. The guard tried explaining the situation to the police and said that the bag contained female clothes. The husband told the police that the blue bag was his and the red bag was his wife’s. She was given clothes donated by the Red Cross. She got her bag back the following Wednesday.
The police treated the man well. That night a policeman came and informed him that his wife had been taken to hospital. The following day he was moved to a different section of the building where he waited for four hours. He was then handcuffed and told he was being taken to prison. Other prisoners in the van were threatening until he told them his story, then they felt sorry for him, and one bought him a coffee while they waited at court.
The couple were subsequently granted refugee status.
The Auckland Central Remand Prison (ACRP)
[79] Asylum seekers at the ACRP are treated like criminals and not segregated from those on remand. As noted by Justice Thomas, in E’s case,32 refugees should not “be imprisoned like any common crook”. Yet, New Zealand does not have any regulations, or even standards which set out conditions for facilities in which asylum seekers can be detained which further contravenes the UNHCR Guidelines. In practice, this treatment means that every time asylum seekers leave the prison to go to court, they are readmitted on return, as prison authorities seem to have no understanding of the processes involved. This entails strip searches, and time in solitary confinement. Both are degrading and unnecessary.
[80] Remand inmates also often threaten asylum seekers. Amnesty International and Justice for Asylum Seekers during nearly daily visits have recorded many instances of verbal and physical abuse, stand-over tactics, asylum seekers being accused of being terrorists, coercion into handing over personal belongings and butter being smeared over windows so that asylum seekers cannot see out. The most serious incident was an attack on one asylum seeker, who had been a boxer, by four remand prisoners, leading eventually to his segregation. Threats and previous attack attempts had already been reported to prison guards, who advised him to “take them on; then they’ll leave you alone”. Obviously, this sort of advice is unsound and unprofessional. The supervision appears to vary over the prison. In Units E/F detention means virtual 24 hour lock-up, no television and no exercise; with a high incidence of intimidation as outlined above. Stand over tactics are particularly bad in Unit G.
[81] Many of the asylum seekers in ACRP prison are Muslim, yet no provision is made for them regarding Halal food, leading some to refuse food, which affects their health and well-being. They also have difficulty accessing health care.
[82] However, concerns regarding conditions for detention are not restricted to Papakura Police Station, ACRP or the border officials.
Mangere Centre
Resource Consent
[83] Any facility used for detention must surely meet minimum legal standards. In August 1999, the NZIS inquired about the need to apply for resource consent to accommodate “seaborne illegals” on a boat rumoured to be arriving in New Zealand.33 Manukau City Council replied saying the MRRC hostel site and facilities are designated Refugee Resettlement Centre for NZ government sanctioned bona fide refugees and that the zoning for the site does not provide for the activity of a detention centre. Thus, detention is a non-complying activity, which requires a resource consent.34
[84] NGOs are still awaiting a copy of any subsequent Resource Consent requested under the OIA, but it appears it was never applied for, and certainly, no process of public consultation was followed. Rather, in order to detain people at MRRC the NZIS has taken the position that they are able to use the Centre as a detention facility as the existing Resource Consent states that refugees can stay there. Paradoxically, the NZIS has argued that detainees are refugees until they are found not to be, as refugee status is declaratory and not constitutive.35 There is no cap on the number of detainees. The number appears to now be between 25-30 at any one time. This is in contrast to early assurances given to staff and NGOs that no more than 12-14 detainees would be present at one time.
Conditions
[85] Using the standards set by the Alliance Party36 in its pre 1999 election statements, the facilities at MRRC are generally inadequate:
The dilapidated condition of the centre to receive refugees under the UNHCR quota is a disgrace. The patch up funding of $750,000 over three years is inadequate and an insult to the staff.[86] Even though the numbers of asylum seekers reaching New Zealand is low compared to international figures, if they are all to be detained, the current facilities will be unable to cope. Currently approximately 750 quota refugees a year pass through the MRRC. A simple calculation shows that the “inadequate” facilities will fall far short of requirements. If approximately 360 asylum seekers are to be detained over the period of a year, we are concerned that there will not be enough accommodation nor educational facilities to cope. This is aside from the increased administrative burden which all departments on site will have to carry.37[87] There is also an inadequate level of service provided to asylum seekers. Whilst emergency medical treatment is available on site or at Middlemore Hospital, all other needs require a visit to Greenlane Hospital. Although leave to attend appointments is readily given, there are often delays in appointments being made.
[88] Now that the MRRC is accommodating quota refugees alongside detainees, facilities appear to be over stretched. For example, over the weekend of 9/10 March, some asylum seekers arriving had to be housed in blocks without showers, other men were placed in blocks designated for women (albeit with a security guard in attendance).
Quota Refugees And Asylum Seekers Living Together
[89] There are concerns about asylum seekers and quota refugees as co-residents at MRRC at three levels; legal, moral/ethical and at a practical and managerial level.
[90] The fundamental purposes for the two groups being at MRRC are completely opposed. The quota refugees are there to aid their resettlement and eventual integration into New Zealand society. To do this they need to be able to move freely in and out of and about the Centre, and receive visitors freely. They should be able to do this as permanent New Zealand residents.
[91] On the other hand, asylum seekers are required to live at MRRC because they are under detention because of questions of their identity and for security concerns. This means their movements are restricted. Even with the regime of leave consents in place, the facility is far from being an “Open Centre”.
[92] Refugees arriving on the quota are tired, anxious, confused and often fearful, but usually filled with hope of fair, non-discriminatory treatment. To have them living alongside those who are possibly to be deported and whose freedom of movement is severely restricted can only be further destabilising, which is counter to the purpose of the on-arrival programme. The Centre being patrolled by uniformed guards, who cause negative connotations and have psychological effects reminiscent of a traumatic past, fails to aid integration indeed does exactly the opposite. Ironically, some refugees entering New Zealand from places with questionable human rights records, such as Sudan, have been self settled in their country of first refuge; that is they have not lived in refugee camps. Living in a detention centre at MRRC will be their first experience of having their movement restricted or treated as a segregated community.
A Total Institution
[93] Even before MRRC was a detention centre, everybody accommodated there lived, received services and attended classes together following an imposed schedule. They were cut off from wider society by the physical isolation, the surrounding wasteland and the high perimeter fence. Everyone’s lives were formally administered and controlled, in large part by a single authority. All programmes offered were developed and delivered to fulfil the official aims of the institution. A central bureaucracy made major decisions about people’s lives and information sharing was largely controlled by them. There was little mobility from refugee to staff member. Few former refugees held positions of responsibility at the Centre. Every aspect of life was scrutinised, very little was private. The arrival of each group followed the same routine, based on formal meetings. These are all characteristics of a Total Institution - the effects of which are hard to overturn no matter what programmes are provided. These characteristics also affect the work of staff. Their work is frequently open to constant scrutiny and all must be done well, efficiently, regularly and according to rules (either published or customary). Little discretion is allowed for. The negative impact of a total institution causes social responsibility to be eroded. It does not encourage refugees to feel responsibility for caring for the Centre nor to New Zealand.
[94] The inherent characteristics of such institutions can only be heightened and exacerbated by asylum seekers being detained at the Centre. Those who visit and have worked at the Centre notice the place has become more like a prison or military establishment over the past few months. Even on a short visit, the issuing of numbers at the gate, radios crackling messages such as “male 22 years”, uniformed guards and reference to “leave warrants” to enable residents to attend church soon set the tone.
Health And Education
[95] Learning can only occur when people are in a state of readiness. Constant anxiety and worry quickly dissipates this state. This was recognised in Australia in the mid 1980s. Up until that time refugees arriving on the quota system and those who were detained were accommodated in the same complex; albeit separated by a fence. This became unworkable and the two functions were separated. It would be a great shame if New Zealand unwittingly eroded an essentially sound quota programme.
[96] Aside from the social and psychological effects of uniformed guards (no matter how friendly and compassionate they are) and controlled movement, the legality of people who are permanent New Zealand residents living under such constrained conditions is also open to challenge.
[97] At a practical level, tensions are likely to develop between the groups unless the two-tier system of access to services is addressed. Asylum seekers are only entitled to emergency care on site, although some (unfunded) public health screening has begun. To access this detainees are taken to Greenlane Hospital. The quota already stretches the current medical staff at the centre. Undoubtedly asylum seekers will demand services of them once they observe the services provided to the quota refugees, and hear of the services provided to those from the Tampa.. As one doctor at MRRC puts it; “The situation is clearly unsatisfactory”.38
[98] Public health arguments have been used by some senior immigration officials as one of the reasons for detention. This raises questions about the situation and risk to the 125 quota refugees who are permanent residents. The argument that they themselves are a public health risk will not stand up to scrutiny, especially when relatives of both asylum seekers and quota refugees arrive in the country from the same backgrounds on family reunification grounds, without being subject to any health screening.
[99] Nor is there any budget for education of asylum seekers, although asylum seekers are now attending AUT classes. This is at the largesse of staff while they await Ministry of Education funding. However, the practicalities of offering a coherent education programme with constant arrivals and departures and a highly heterogeneous language mix, are very difficult. A build up of tensions was observed last year when people from the Tampa were attending classes and asylum seekers were unable to. These dissipated once they joined the classes. Further, to have asylum seekers with nothing to do all day will also have negative effects. It is not clear what educational provision there will be between intakes.
[100] It is already well documented that asylum seekers have less access to services than quota refugees. Aside from making the Centre almost impossible to manage, ethically a two-tier system of service provision for quota refugees and asylum seekers will heighten tensions and be indefensible. This destabilisation will be exacerbated once people start to be deported.
Public Acceptance
[101] An important part of refugee resettlement is public acceptance. Over the years, efforts have been made to ensure that people in the MRRC area know the Centre, and are accepting of those living there. What impression does it create that a group of people, who have lived relatively freely in the Centre for more than twenty years, are now subject to these security measures? At this moment, every effort needs to be made to build public confidence in the refugee system. The current arrangement at MRRC does not do this. How was the surrounding community consulted about the move to the Centre becoming essentially a detention centre?
[102] If arguments are put forward on the basis of public security, the security and rights of the quota refugees will also need addressing. To compromise the situation of 125 people in each intake (a total of 750 a year) for the benefits of detaining the 14 evidently planned for, is indefensible. As is playing off the rights and situation of one vulnerable group against the other. The rationale for detention is surely undermined by mixing the groups. Yet, it seems even less practicable or ethical to segregate the two groups at the Centre.
[103] Contact with the community is essential for refugee resettlement. Refugees need visitors during their time at MRRC, and the use of the Centre’s facilities has long served many community groups. Some feel that the tensions that developed at Whangaparaoa last year were fuelled by the lack of contact with community members. The current security arrangements at MRRC can only perpetuate this. Creating visiting times, or regulating access through these means will only add to the negative characteristics of the total institution. Again, there was no consultation with refugee communities, before the announcement of the intention to make MRRC a Detention Centre in which quota refugees will also live. Yet, they are among the groups most affected by this policy.
[104] Earlier enquiries to both the Minister39 and the Manager of the MRRC40 were met with an assurance that the situation would be resolved before the arrival of the first quota group. Instead, the largesse of staff at the Centre has been stretched yet again. This sort of response might be workable in the short term but it will not stand up long term.
[105] Much of the above raises concerns, previously voiced by the NGO community41 about New Zealand’s lack of a coherent refugee policy. The Prime Minister herself acknowledges “we are not satisfied with the level of service and the speed with which we are addressing the issues at the moment”.42 There do not appear to be any mechanisms or safeguards for detention issues to be raised or addressed in a comprehensive fashion across all government agencies concerned.
[106] This is the third time in the past 12 years that refugees have been routinely detained in a panic reaction to world events. The first was during the Gulf War, the second, during the APEC Conference in 1999 and now due to the aftermath of the September 11th attack on the New York World Trade Centre.
[107] Rodger Haines provides a useful summary of the measures taken by the NZIS at the time of the Gulf war:43
“On 28 January 1991 the Minister of Immigration issued a document entitled "Provisional Procedures for Determining Refugee Status Applications During the Gulf War Where There is a Security Risk". The procedures came into effect on 28 January 1991 and remained in force until 30 April 1991. During that period, of 80 people who arrived in New Zealand and claimed refugee status, about half were refused security clearance and sent home. The number of people arriving at Auckland International Airport either with false documentation, or lacking any, and seeking asylum, dropped from 50 in January 1991 to 13 in February 1991 and 5 in March 1991. [Helen Ubels & Lloyd Jones, "Fewer seek refuge as new rules bite" NZ Herald, Thursday, April 11, 1991]. The emergency procedures in summary were as follows:Apec 1999(a) They applied to all persons living in New Zealand and applying for refugee status;The procedures were not published or enforced pursuant to any express statutory power and the procedures contained no definition of what was meant by "threat to national security". Nor were the Police expressly required, in giving or withholding a security clearance, to take account of New Zealand's obligations under the Refugee Convention or the Convention Against Torture. Significantly, the question the Police had to address was not whether the individual actually constituted a threat to national security. Rather, the question was couched in the negative, namely whether it could be said that the person did not constitute a threat to national security.(b) Such persons were to be held in custody;
(c) The New Zealand Immigration Service was permitted to determine only whether the applicant had a prima facie claim to refugee status. No decision was to be made as to whether the individual was in fact a refugee;
(d) There was to be no appeal against a decision that a prima facie case had not been established;
(e) Where the Immigration Service decided that no prima facie case had been established, the applicant was to be removed from New Zealand;
(f) Where a prima facie case had been established it was then necessary for the police to give what was called "a security clearance";
(g) For those cases where the Immigration Service had determined that a prima facie case for refugee status had been established, but the Police were unable to state that the applicant did not pose a threat to national security, then expulsion was to occur.
Predictably, the point was arrived at where a security clearance was withheld from asylum-seekers on the grounds that "not enough was known about them".44
[108] During the APEC Conference held in Auckland in 1999, all asylum seekers were detained in ACRP. Prison conditions were appalling and many claimants suffered harassment and threats from other remand prisoners. This detention policy led to a hunger strike by a group of 16 asylum seekers.
[109] Both these situations drew international criticism. They were eventually resolved following a prolonged period of lobbying by NGOs and others. However, they both had long-term consequences. Among these were the exclusion of immigration matters from the 1993 Human Rights Act, making it difficult for the Human Rights Commission to take up refugee issues. This in itself was a grave breach of rights. Neither situation was resolved by comprehensive, sustainable policy making or contingency planning.
11 September 2001
[110] Again, after 11 September, it appears there have been rapid and ad hoc legal and regulatory developments, without a supporting policy or operational framework. The latest regulations were slipped in following the humanitarian gesture towards people from the Tampa. The new regulations and operating instructions are not widely published, and it is difficult for lawyers to access them. Further, what sets this situation apart from the two previous episodes is the number, range and length of time that people are detained.
[111] The provision of some clauses (24-26) in the draft of the Transnational Organised Crime Bill appear to further undermine the asylum system by continuing an ad hoc response, exacerbating uncertainty in the system.
[112] Upon the arrival of the people from the Tampa the quota programme was in effect suspended for six months, only resuming in early March 2002. Although considered by the government to be an “immediate problem”,45 this is not the first time New Zealand has had to make rapid preparations for the possibility of a large number of people arriving.46 There does not appear to be any contingency planning by government to cover such eventualities. In fact, six months after the arrival of the Tampa people, and into the first intake of the quota refugees of the year, the MRRC operated in an ad hoc fashion without the guidance of policies and an appropriate level of resourcing until a crisis of staffing resulted in a temporary solution.
[113] Nor does there appear to be any systematic linking of operations to policy making by the NZIS. The current review of the situation at MRRC is at an operational level, and as stated above is predicated upon detention remaining. In discussions with operational officials, NGOs are requested to take up policy issues with the NZIS Policy and Evaluation Division in Wellington.47
Detention as a Measure of Deterrence
[114] Given the ability of asylum seekers to apply for leave, and go out on visits whilst at MRRC, it is difficult to see how the policy is other than a measure of deterrence. An article in the New Zealand Herald of 1 June 2002, “Scare tactics aim to head off boat people”, supports this view:
NZ MESSAGE[115] This is especially so when the Market Manager of B&I admits to increased interdiction efforts, a greater focus on overseas ports and greater efforts to work through airlines stressing that all asylum seekers seem to be smuggled. In fact, it is asserted by some that these sorts of measures have in large part led to an increase in smuggling.48 However research and experience elsewhere has shown that detention is no deterrent. In the words of Amnesty International’s Secretary General:
WARNING
…Even if you do make it, New Zealand law provides for those arriving illegally to be detained. You face that prospect while your asylum claim is processed. Most claims made in New Zealand fail. If you claim fails you will be sent home.“The detention policy has failed as a deterrent and succeeded only as punishment. How much longer will children and their families be punished for seeking safety from persecution.”49Regional solutions[116] Refugees and concerns for international relations and development assistance are inextricably linked. Currently there have been media reports of New Zealand increasing the number of refugees accepted under the quota from camps in Malaysia and Indonesia as part of a regional solution and support for Australia as it wrestles unsuccessfully with its own policy framework. Such regional agreements are common and probably an essential approach to refugee protection and are in fact the reality for most refugees. However, they need to be well planned and acknowledge that development assistance will also likely be needed to improve the reception conditions of asylum seekers in such countries (including access to advocates and appropriate health services) and to address root causes. It is also unlikely that resettlement of the numbers envisaged by New Zealand (or elsewhere for that matter) will address the problem on a necessary scale. It is essential then that New Zealand’s asylum system is not undermined or diverted. In New Zealand, any refugee policy must make a commitment to family reunification for those arriving to avoid the continued ad hoc response which all acknowledge exacerbates the problem.
[117] It is imperative then that not only is NZAID’s position clear in regard to foreign policy, it must also be cohesive with our immigration policy.
[118] New Zealand must develop a comprehensive refugee policy framework which can take account of emergency situations, but avoid the damaging response of wholesale detention.
[119] Specifically we recommend:
1. All government departments and Ministries involved in asylum issues work together to develop a sound, fair comprehensive refugee policy.2. New Zealand’s refugee policy be linked to the provision of development assistance to address both conditions in countries of first asylum, and root causes of refugee flows.
3. New Zealand’s policy of virtually blanket detention be stopped. Detention of asylum seekers is to be the exception rather than the rule, and only when “necessary”.
4. That asylum seekers are only detained under the conditions set out in the UNHCR Guidelines. Particular attention needs to be given to ensure:
a. Alternatives to detention are actively considered;5. Asylum seekers are not detained at the MRRC alongside quota refugees.b. Appropriate procedural safeguards are implemented:
i. More than one official reviews decisions to detain;c. Children are not detained.ii. Asylum seekers are properly informed of the reasons for their detention;
iii. In the absence of a UNHCR office in New Zealand, a national NGO be informed of all arrivals;
iv. Only experienced lawyers are assigned refugee cases;
v. All asylum seekers have access to resources and facilities to obtain material to secure their release and further their asylum claims.
d. Vulnerable people are not detained, and all asylum seekers have ready access to health care-including mental health care.
e. Women detainees are safe and have access to appropriate care and services at all times. Pregnant women are not detained.
f. That detention conditions are humane and respectful of asylum seekers’ dignity.
g. That sufficient monitoring of treatment of asylum seekers at Papakura Police Station is carried out.
AFP Monday, January 28; New Zealand wants more Refugees, says PM.
Alliance Party Refugees Fri 01 Jan 1999. Accessed at www.alliance.org.nz/info, on 17 March 2002.
Amnesty International Index ASA 12/006/2002-News Service Nr. 42.
Berends T (1991), "Legal bid to free nine detainees", New Zealand Herald, Saturday, 26 January 1991 reporting the comments of Mr Brian Davies, Assistant Commissioner of Police.
Edmund Rice Centre for Justice and Community Education (2001) Debunking Myths about Asylum Seekers. Accessed on 17 March at http://www.erc.org.au/issues/text/se01.htm.
Haines R (1998) Address to the International Law Association in Auckland, 9 September, 1998, “International Law and Refugees in New Zealand.”
Morrison J & Crosland B (2001) The Trafficking and Smuggling of Refugees: the End Game in European Asylum Seekers? UNHCR WP No.39 accessed at www.unhcr.ch.
Oxfam Community Aid Abroad (2002) Adrift in the Pacific: the Implications of Australia’s Pacific Refugee Solution.
Refugee Resettlement Policy in New Zealand: A report for the Incoming Coalition Government. NGO Sector. (2000, January 5).
United Nations. (1999). International Thesaurus of Refugee Terminology. Second Edition (English Version) UN; NY ISBN: 92-1-000052-8.
UNHCR 2002 UNHCR Guidelines on the Detention of Asylum seekers in Discussion Paper No.1 January 2002 UNHCR Canberra.
US Committee for Refugees; Country Report for New Zealand for 2000.
Appendix 1 New Zealand
Immigration Service
Te Ratonga Manene
19 September 2001
OPERATIONAL INSTRUCTION: EXERCISE OF DISCRETION PURSUANT TO SECTION 128(5) OF THE IMMIGRATION ACT 1987 TO DETAIN PERSONS WHO HAVE CLAIMED REFUGEE STATUS
Section 128(5) of the Immigration Act 1987 provides a power for Police to detain persons who have arrived in New Zealand from another country and failed to apply for a permit or are refused a permit. The purpose of detention is to effect those persons’ departure from New Zealand on the first available craft.
Where a person has arrived in New Zealand from another country and, upon their arrival, have claimed refugee status under the Refugee Convention, care must be exercised in the invocation of the section 128(5) power. There are a number of reasons for this:
1. Some of those who arrive at the border and present a claim for refugee status will be recognised as refugees. For such persons, who already have a well founded fear of persecution and an entitlement to protection, detention, even for a short period of time, will be traumatic;However, there will be circumstances where the detention of a person who claims refugee status at the border is justified. This is particularly where interests of national security or public order and safety arise. Whether detention is justified will depend upon a close assessment of all of the factors relating to the arrival. These may include the extent to which that person is able to provide accurate and reliable information as to their identity, the apparent strength or weakness of their claim and the extent to which there are identified risks to public health, safety, security and order. An assessment of risk to public safety, security, and order will need to take account of the prevailing security situation, both in New Zealand and globally. In addition, whether or not the person arrived as part of a group of illegal migrants will be an important factor in determining whether detention is, in the circumstances, justified.2. Section 129X(2) of the Immigration Act requires immigration officers, (which by dint of section 139 of the Act includes the Police exercising powers under section 128(5)), to have regard to the provisions of the Refugee Convention in carrying out their functions. In accordance with Article 31 of the Refugee Convention and also the UNHCR Guidelines on Detention, it is generally that accepted detention of refugees should occur only where necessary;
3. Section 129X(1) provides that no person who is a refugee status claimant (or who has been recognised as a refugee) may be removed or deported from New Zealand unless such removal or deportation is permitted in terms of Articles 32.1 or 33.2 of the Refugee Convention. This means that for claimants who wish to prepare a claim and pursue any rights of appeal, if held in custody, they may be detained for a not inconsiderable period of time.
Whether detention is justified will also depend upon the type of detention envisaged. The UNHCR Guidelines on Detention recognise a distinction between detention in a prison environment and accommodation at an open centre with some restrictions on freedom of movement.
To assist in deciding whether or not in a particular case detention is justified, and the type of detention justified, officers should be guided by the following:
If one or more of the following factors exist seeking a section 128 (or 128B) Warrant of Commitment for Detention in a Penal Institution may be justified:
1. Where a refugee status claimant is a person to whom section 7(1) of the Act applies or where detention is otherwise required to protect national security or public order;
2. Where there is reason to suspect that a refugee status claimant is a person to whom section 7(1) applies but their section 7(1) status cannot be immediately ascertained. This is especially in the case of a group arrival situation where there may be good reason to suspect some of those arriving are people smugglers;
3. Where necessary to verify the identity of a refugee status claimant where identity is in dispute and particularly in the case where identity may impact on the application of section 7(1) of the Act. Again this is especially relevant in the group arrival situation where there may be reason to suspect persons of people smuggling and the risks in failing to properly ascertain identity are high;
4. Where a refugee status claimant has destroyed or otherwise disposed of their travel and/or identity documents with the intention of misleading NZIS officials as to the details of their travel and/or identity;
5. Where a refugee status claimant has used fraudulent documents in order to mislead NZIS officials (ie. The claim to refugee status follows detection of the fraud by officials or the Police);
6. Where there is a clearly identified risk of a refugee status claimant absconding and that risk cannot be managed by the refugee status claimant being required to reside at the Mangere Accommodation Centre. Again in the group arrival situation officers will need to carefully consider this ground where some of those presenting claims may have a clear incentive to abscond;
7. Where a claim for refugee status is clearly fraudulent or not related to the criteria for the granting of refugee status laid down in the Refugee Convention nor any other criteria justifying the granting of refugee status; or
8. Where a refugee status claimant has already had a claim to refugee status declined in another Convention Country.
If one or more of the following factors exist seeking a section 128 Warrant of Commitment for Residence at the Mangere Accommodation Centre may be justified:
1. Where the identity (including nationality) of a refugee status claimant cannot be ascertained to the satisfaction of the NZIS and they are not to be detained in a penal institution nor does there appear particular reasons for allowing them to enter the community unrestricted;
2. Where there is a risk of a refugee status claimant absconding and that risk can be managed by that refugee status claimant being required to reside at the Mangere Accommodation Centre;
3. Where a refugee status claimant has been in conditions for some period of time that are not conducive to good health;
4. Where a refugee status claimant has arrived as part of a group of 10 or more persons and they are not to be detained in a penal institution nor does there appear particular reasons for allowing them to enter the community unrestricted;
5. Where a preliminary assessment of a refugee status claimant’s claim suggests that the merits of the claim are not strong; or
6. Where a refugee status claimant has no valid travel and/or identity document and there may be delay or difficulty in obtaining those documents in the event that their claim to refugee status is declined.
The detention of persons at the border who claim refugee status but are not granted a permit is not limited to the specific circumstances outlined. All cases depend upon an individual assessment of their circumstances.
This operation instruction rescinds previous operational instructions concerning the detention of refugee status claimants pursuant to section 128(5) of the Immigration Act 1987.
“Chris Hampton”
Chris Hampton
General Manager
New Zealand Immigration Service
Appendix 2 OFFICE OF THE UNITED NATIONS
HIGH COMMISSIONER FOR REFUGEES
GENEVAUNHCR REVISED GUIDELINES ON APPLICABLE CRITERIA AND
STANDARDS RELATING TO THE DETENTION OF ASYLUM SEEKERS 1(February 1999)
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 Convention2. 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, or 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 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 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 continuation exist.36. Although these guidelines deal specifically with the detention of asylum-seekers
the issue of the detention of stateless persons needs to be highlighted.4 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 them, 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.5
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 the 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.6
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 those 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.7 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. Detention should also be avoided for failure to comply with the administrative requirements or other institutional restrictions related residency at reception centres, or refugee camps. Escape from detention should not lead to the automatic discontinuation
of the asylum procedure, or to return to the country of origin, having regard to the principle of non-refoulement.8Guideline 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, and/or that of a family member, NGO or community group who would be expected to ensure 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. 9
(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 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 the provision 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 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.10
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 their rights in connection with the order, in a language and in terms which 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 continuation 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 not constitute an obstacle to an asylum-seekers’ possibilities to pursue their asylum application.
Guideline 6: Detention of Persons under the Age of 18 years.11
In accordance with the general principle stated at Guideline 2 and the UNHCR Guidelines on Refugee Children, minors who are asylum-seekers should not be detained.
In this respect particular reference is made to the Convention on the Rights of the Child in particular:
which is essential to a child’s mental development and will 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.12
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:13
Unaccompanied elderly persons.
Torture or trauma victims.
Persons with a 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, 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 be granted access to legal and other services without discrimination as to their gender,14 and specific services in response to their special needs15. 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 their nationality.16
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.17 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 individual’s 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 Detention18
Conditions of detention for asylum-seekers should be humane with respect shown 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) the initial screening of all asylum seekers at the outset of detention to identify trauma or torture victims, for treatment in accordance with Guideline 7.
(ii) the segregation within facilities of men and women; children from adults (unless these are relatives);
(iii) the use of separate detention facilities 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) 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) the opportunity to receive appropriate medical treatment, and psychological counselling where appropriate;
(vi) the opportunity to conduct some form of physical exercise through daily indoor and outdoor recreational activities;
(vii) the opportunity to continue further education or vocational training;
(viii) the opportunity to exercise their religion and to receive a diet in keeping with their religion;
(ix) the opportunity to have access to basic necessities i.e. beds, shower facilities, basic toiletries etc.;
(x) 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 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.
1. These Guidelines address exclusively the detention of asylum seekers. The detention of refugees is generally covered by national law and subject to the principles, norms and standards contained in the 1951 Convention, and the applicable human rights instruments.
2. The Geneva Convention of 28 July 1951 Relating to the Status of Refugees.
3. Views of the Human Rights Committee on Communication No. 560/1993, 59th Session, CCPR/C/D/560/1993.
4. UNHCR has been requested to provide technical and advisory services to states on nationality legislation or practice resulting in statelessness. EXCOM Conclusion No. 78(XLVI) (1995), General Assembly Resolution 50/152,1996. See also Guidelines: Field Office Activities Concerning Statelessness.(IOM/66/98-FOM70/98).
5. Article 9(1) International Covenant on Civil and Political Rights.(ICCPR)
Article 37(b) UN Convention on the Rights of the Child.(CRC)
Article 5(1) European Convention for the Protection of Human Rights and Fundamental
Freedoms.(ECHR)
Article 7(2) American Convention on Human Rights 1969.(American Convention)
Article 5 African Charter on Human and People’s Rights. (African Charter)
6. Article 9(1), Article 12 ICCPR,
Article 37(b) CRC
Article 5(1)(f) ECHR
Article 7(3) American Convention
Article 6 African Charter.
EXCOM Conclusion No. 44(XXXVII)
7. EXCOM Conclusion No. 44 (XXXVII)
8. Sub Committee of the Whole of International Protection Note EC/SCP/44 Paragraph 51(c).
9. Art 16, Art 12 UDHR
10. Article 9(2) and (4) ICCPR
Article 37(d) CRC
Article 5(2) and (4) ECHR
Article 7(1) African Charter.
Article 7(4) and (5) American Convention
EXCOM Conclusion no. 44 (XXXVII)
UN Body of Principles for the Protection of All Persons under any Form of Detention or
Imprisonment. 1988 UN Standard Minimum Rules for the Treatment of Prisoners 1955
11. See also UN Rules for the Protection of Juveniles Deprived of their Liberty 1990
12. An adult who is familiar with the child’s language and culture may also alleviate the stress and trauma of being alone in unfamiliar surroundings.
13. Although it must be recognised that most individuals will be able to articulate their claims, this may not be the case in those who are victims of trauma. Care must be taken when dealing with these individuals as their particular problems may not be apparent, and it will require care and skill to assess the situation of a person with mental disability or a disoriented older refugee who is alone.
14. See UNHCR Guidelines on The Protection of Refugee Women.
15. Women particularly those who have travelled alone may have been exposed to violence and exploitation prior to and during their flight and will require counselling.
16. Art 15 UDHR. See EXCOM No. 78(XLVI)
17. Article 10(1) ICCPR 1988 UN Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment.
UN Standard Minimum Rules for the Treatment of Prisoners 1955
1990 UN Rules for the Protection of Juveniles Deprived of their Liberty
18. Article 10(1) ICCPR 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.
1990 UN Rules for the Protection of Juveniles Deprived of their Liberty.
Appendix 3
Executive Committee Conclusions
Detention of Refugees and Asylum-Seekers
(No. 44 (XXXVII) - 1986)The Executive Committee,
Recalling Article 31 of the 1951 Convention relating to the Status of Refugees.
Recalling further its Conclusion No. 22 (XXXII) on the treatment of asylum-seekers in situations of large-scale influx, as well as Conclusion No. 7 (XXVIII), paragraph (e), on
the question of custody or detention in relation to the expulsion of refugees lawfully in a country, and Conclusion No. 8 (XXVIII), paragraph (e), on the determination of refugee
status.Noting that the term "refugee" in the present Conclusions has the same meaning as that in the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, and is without prejudice to wider definitions applicable in different regions.
(a) Noted with deep concern that large numbers of refugees and asylum-seekers in different areas of the world are currently the subject of detention or similar restrictive measures by reason of their illegal entry or presence in search of asylum, pending resolution of their situation;
(b) Expressed the opinion that in view of the hardship which it involves, detention should normally be avoided. If necessary, detention may be resorted to only on grounds prescribed by law to verify identity; to determine the elements on which the claim to refugee status or asylum is based; to deal with cases where refugees or 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; or to protect national security or public order;
(c) Recognized the importance of fair and expeditious procedures for determining refugee status or granting asylum in protecting refugees and asylum-seekers from unjustified or unduly prolonged detention;
(d) Stressed the importance for national legislation and/or administrative practice to make the necessary distinction between the situation of refugees and asylum-seekers, and that of other aliens;
(e) Recommended that detention measures taken in respect of refugees and asylum-seekers should be subject to judicial or administrative review;
(f) Stressed that conditions of detention of refugees and asylum seekers must be humane. In particular, refugees and asylum-seekers shall, whenever possible, not be accommodated with persons detained as common criminals, and shall not be located in areas where their physical safety is endangered;
(g) Recommended that refugees and asylum-seekers who are detained be provided with the opportunity to contact the Office of the United Nations High Commissioner for Refugees or, in the absence of such office, available national refugee assistance agencies;
(h) Reaffirmed that refugees and asylum-seekers have duties to the country in which they find themselves, which require in particular that they conform to its laws and regulations as well as to measures taken for the maintenance of public order;
(i) Reaffirmed the fundamental importance of the observance of the principle of non-refoulement and in this context recalled the relevance of Conclusion No. 6 (XXVIII).
Appendix 4 EXECUTIVE COMMITTEE OF THE Dist.
HIGH COMMISSIONER’S PROGRAMME RESTRICTEDEC/49/SC/CRP.13
4 June 1999STANDING COMMITTEE Original: ENGLISH
15th meetingDETENTION OF ASYLUM-SEEKERS AND REFUGEES:
THE FRAMEWORK, THE PROBLEM AND
RECOMMENDED PRACTICEI. PURPOSE OF THE CONFERENCE ROOM PAPER
1. The detention of asylum-seekers has received considerable attention over recent years. Large numbers of individuals falling within the mandate of the Office are presently subject to detention or similar restrictive measures in different parts of the world. In view of the provisions of Article 31 of the 1951 Convention relating to the Status of Refugees and the fact that the majority of asylum-seekers have not committed crimes -- and indeed they are not suspected of having done so -- their detention raises significant concern, both in relation to the fundamental right to liberty, and because of the standards and quality of treatment to which they are subjected.
2. Against a background of regular resort to detention of asylum-seekers, this note is submitted both to draw attention to the increasing institutionalization of the practice and to inform more detailed discussion by the Standing Committee of the Executive Committee of the High Commissioner’s Programme on detention practices. It is hoped that the Standing Committee will again take a strong stand on the issue, in particular on the aspect of arbitrariness. A series of proposals are put forward for consideration by the Standing Committee in conclusion of this note.
II. THE FRAMEWORK
A. UNHCR concern
3. Detention has been a recurring protection problem for the Office. It is regularly brought to the attention of the Executive Committee, and has been the subject of specific focus on at least four occasions. In 1986, the Note to the Sub-Committee of the Whole on International Protection (EC/SCP/44) expressed concern that the use of detention was increasing, despite Executive Committee recommendations discouraging recourse to detention in 1980 and 1983. This same concern was raised in the High Commissioner’s reports to the United Nations General Assembly in 1984 (A/39/12), 1985 (A/40/12) and 1986 (A/42/12). These reports chronicled a failure on the part of States to make the necessary distinction between asylum-seekers on the one hand, and illegal migrants on the other, thereby exposing the former to such control measures as automatic detention for indeterminate periods. Concern with regard to detention has been repeatedly expressed by the Executive Committee in its General Conclusions on International Protection, including in 1987 (A/AC.96/702, para. 204), 1989 (A/AC.96/737, para. 22), 1992 (A/AC.96/804 para. 21) and 1993 (A/AC.96/821, para. 19). In the early 1990s, the Office studied the European detention legislation and practice and in 1995 published an analysis of findings in Volume 1, Number 4 of the European Series. Similar monitoring of the detention practices in Asia, Africa and the Americas, as well as in Europe, has been undertaken during 1999. Results of this monitoring suggest no amelioration of the problem.
4. In its 1986 Conclusion on Detention of Refugees and Asylum-Seekers (A/AC.96/688, para. 128), the Executive Committee stated clearly that detention of asylum-seekers and refugees should normally be avoided; if found to be necessary, it may be resorted to only on grounds prescribed by law and only for specific and limited purposes. This Conclusion also identified the need for national legislation and administrative practice to distinguish between refugees/asylum-seekers and other aliens, noting that detention of these persons should be subject to judicial or administrative review. The importance of humane conditions of detention and the need to ensure that refugees and asylum-seekers are not accommodated with persons detained as common criminals, were also highlighted.
5. At its forty-ninth session in 1998 the Executive Committee again returned to the detention issue. In its Conclusion on International Protection (A/AC.96/911m, para. 21 (dd) and (ee)), the Executive Committee stated that it:
“Deplores that many countries continue routinely to detain asylum-seekers (including minors) on an arbitrary basis, for unduly prolonged periods, without giving them adequate access to UNHCR and to fair procedures for timely review of their detention status; notes that such detention practices are
inconsistent with established human rights standards and urges States to explore more actively all feasible alternatives to detention;“Notes with concern that asylum-seekers detained only because of their illegal entry or presence are often held together with persons detained as common criminals, and reiterates that this is undesirable and must be avoided whenever possible, and that asylum-seekers shall not be located
in areas where their physical safety is in danger.”B. International standards 6. The right to liberty is a fundamental human right set out in universal and regional human rights instruments. The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the African Charter on Human and Peoples’ Rights, the American Convention on Human Rights “Pact of San Jose”, and the Cairo Declaration on Human Rights in Islam all specify, in more or less similar terms, that no one should be arbitrarily deprived of his or her liberty. This includes, of course, both refugees and asylum-seekers.
7. Refugees and asylum-seekers are in a different situation than other aliens by virtue of the fact that they may be forced by their circumstances to enter a country illegally in order to escape persecution. Hence Article 31 of the 1951 Convention relating to the Status of Refugees prohibits the punishment of refugees for illegal entry under certain circumstances, which would of course be justified for others. The Executive Committee’s 1986 Conclusion on Detention of Refugees and Asylum-Seekers sets out the limited accepted bases on which the detention of refugees or asylum-seekers may be justified, namely: to verify identity; to determine the elements of the claim; to deal with cases where refugees 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; or to protect national security or public order.
8. Detention of asylum-seekers is also on the agenda of human rights bodies. Within the United Nations system, the Commission on Human Rights established a Working Group on Arbitrary Detention in 1991 to investigate cases of detention imposed arbitrarily or otherwise inconsistently with the relevant international standards. In 1997, the Working Group was asked to devote its attention to detained immigrants and asylum-seekers and has since conducted visits to various States to investigate their situation. The Human Rights Committee, the United Nations treaty monitoring body for the International
Covenant on Civil and Political Rights, has also addressed this problem in observations regarding implementation of the Covenant by certain countries and in the resolution of individual complaints brought before it. In a broader context, the Human Rights Committee has published General Comments on the interpretation of various provisions of the Covenant, several of which touch on the issue of detention of aliens, including asylum-seekers.9. Regional human rights institutions, particularly those in Europe, have for their part also expressed concern about detention of asylum-seekers. The European Court of Human Rights (and in the past the Commission) have addressed the issue in a number of decisions which variously declare detention which is arbitrary as unlawful, and unacceptable conditions of detention, for example in an airport international transit zone, as inconsistent with the European Convention on Human Rights and Fundamental Freedoms. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (established under the Convention of the same name) has also looked at detention of refugees and particularly of asylum-seekers. During its monitoring missions to States, Committee members regularly request to visit places where asylum-seekers are held and have frequently commented, sometimes in strong terms, on the conditions there.
10. Following from these fundamental principles, detention of asylum-seekers may be considered to be arbitrary if: it is not in accordance with the law; if the law itself allows for arbitrary practices, or is enforced in an arbitrary way; when it is random or capricious or not accompanied by fair and efficient procedures for its review. It may also be arbitrary if it is disproportionate, or indefinite. Recent developments in human rights law suggest that detention in accordance with the law requires a legal regime governing detention, as opposed to a mere executive decision to detain. For detention not to be arbitrary it should be prescribed by a law that is sufficiently accessible and precise, and it should not
include elements of inappropriateness or injustice.11. In addition, all those who are detained have a right to be treated in conformity with internationally accepted norms and standards. Among these are those established in the United Nations Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, and the United Nations Standard Minimum Rules for the Treatment of Prisoners. These rules represent a consensus among States on how the basic principles should be respected. Asylum-seekers have a right, as all other individuals, to be treated in accordance with these standards.
C. UNHCR guidelines
12. In 1995, in order to provide guidance to States on the limits to detention, the Office produced a set of Guidelines on Detention of Asylum-Seekers. The Guidelines brought together important international law principles relating to detention with existing UNHCR doctrine. They set out minimum standards for what might be considered acceptable state practice. These Guidelines have recently been revised to reflect developments in human rights law, particularly as regards arbitrary detention. They also seek to offer greater clarity regarding the circumstances in which restrictions may be warranted and the alternatives which could be considered.
13. The revised Guidelines reiterate the principle that detention of asylum-seekers should be an exception, not the rule. The exceptional situations remain the same as those set out in the 1986 Conclusion on Detention of Refugees and Asylum-Seekers (see paragraph 7 above). The revision elaborates further on the grounds for detention, provides additional guidance on the identity and documentation issue and proposes a number of alternatives to the use of detention for asylum-seekers. Options suggested in the Guidelines include the use of reporting and residency requirements, release on bail, sureties (which could be provided by family members, churches, non-governmental organizations or other community members) and allowing asylum-seekers to live in open centres where their presence can be monitored. The Guidelines encourage all States actively to work towards incorporating alternatives to detention into their overall policy.
III. RECOMMENDED PRACTICE
A. Arbitrary detention
14. In many States the decision to detain is taken on the basis of sometimes very wide discretionary powers, often not prescribed by law. Moreover, even when the grounds upon which such orders are made are established in law, these are far too frequently applied in an arbitrary manner. For instance, a large number of asylum-seekers are detained on the formal basis that it is likely that they will abscond prior to completion of the status determination procedures, the fear being that they will not present themselves for removal in the event of a negative asylum decision. While applicable national law may make provisions for detention in all such cases, international standards dictate that there must be some substantive basis for such a conclusion in the individual case.
15. Many jurisdictions make detention of asylum-seekers mandatory where the person does not have identity documents, or uses false documents. States must, however, recognize that the very circumstances which prompt the flight may compel an asylum-seeker to leave without documents or to have recourse to fraudulent documentation when leaving a country where his/her physical safety or freedom is endangered. Where such compelling circumstances exist, the use of such documentation would be justified. Where there is a willingness on the part of the asylum-seeker to cooperat with the
verification of identity process and asylum-seekers have not destroyed their documents with the sole purpose of misleading the authorities, detention in order to verify identity should not routinely be judged necessary, in the absence of other factors.16. The requirement that detention be subjected to either an administrative or judicial review is an essential safeguard against arbitrary detention. In many States, review mechanisms either of an administrative or judicial nature do exist. The degree to which asylum-seekers can effectively challenge the lawfulness of their detention, however, varies significantly. In many States, asylum-seekers are expected to initiate the review process themselves, by applying for bail or parole, which often poses difficulties given their unfamiliarity with the legal process and, in many cases, their inability to speak the
language. These difficulties are even more acute when assistance in the form of legal aid is not available. In order to ensure that the rights of asylum-seekers are respected in this regard, there should be prompt, mandatory and periodic review of all detention orders before an independent and impartial body.17. UNHCR shares the opinion of the Working Group on Arbitrary Detention that in States where such challenges are by way of bail hearings “asylum-seekers may have no effective opportunity to challenge the reasons for the detention, as the focus would be on establishing the reliability of the surety and its relationship to the applicant as opposed to the reasons for the detention.”
B. Conditions of detention
18. In addition to its preoccupation with the legal dimensions of the problem, the Office has become particularly concerned about the conditions in which many asylum-seekers are detained. Contrary to recommendations consistently made by the Executive Committee, large numbers of asylum-seekers in detention continue to be accommodated with prisoners on remand or convicted criminals, which may pose a direct threat to their physical integrity. The majority of asylum-seekers in detention are not there by virtue of having committed a crime, but due to a breach of administrative procedures. In accordance
with the United Nations Standard Minimum Rules for the Treatment of Prisoners and the Body of Principles for the Protection of all Persons under any form of Detention or Imprisonment, administrative detainees should be held separately from criminal detainees.19. The living conditions of detained asylum-seekers is a serious concern in many countries where detention is practised. Serious overcrowding, failure to provide separate quarters for women and men, living spaces which lack appropriate furniture and sanitary and other facilities, such as proper bathing or washing areas or outdoor space for recreational purposes, are commonly reported deficiencies. In one European country where asylum-seekers are routinely detained in community living quarters, the Ombudsperson investigated the conditions in several of the centres during 1998 and reported a number
of violations, even of the country's Constitution, due to appallingly poor living conditions for both the detained asylum-seekers and their guards.20. The problem of wholly inadequate living conditions bordering on, and in some cases arguably amounting to, inhuman and degrading treatment is also common in a number of countries where asylum-seekers are detained for lengthy periods in international transit zones of airports, facilities which ordinarily are not designed for such use. These areas commonly lack privacy, any appropriate sleeping or bathing area, do not allow for separation of males from females and have, at best, restricted access to telephones or other means of contacting UNHCR or other interlocutors. De facto detention in such areas,
especially for those who are undocumented or of undetermined nationality, frequently lasts for many months, and in some cases, for years.C. Detention of children
21. Minor asylum-seekers are regularly detained or threatened with detention because of their own, or their parents', illegal entry into the country. Such detention can pose grave risks to their well-being, their education and their psychological development. A serious difficulty, however, for UNHCR in dealing with this problem is the absence of data, or lack of transparency, on the part of some States regarding the number of children detained, the length of their detention, or the specific reasons for their detention.
22. UNHCR welcomes recent measures taken by some States to bring their policies in line with internationally accepted principles, as for example in certain jurisdictions whereby the release of an adult member of the family is permitted in order to keep minor children out of detention. States are encouraged to ensure that minor asylum-seekers are accorded the full scope of legal rights available to adults. The appointment of a legal guardian or adviser will greatly facilitate this task. States are also encouraged to explore appropriate alternatives to detention in conjunction with child welfare agencies. At a minimum, minors should be detained separately from adults, unless these are their relatives, and they should never be placed with common criminals.
D. Detention of refugees
23. While the larger problem, in terms of both numbers and frequency, relates to detention of asylum-seekers, there are also significant problems in some parts of the world with respect to detention of refugees. Refugees have obligations to the country in which they live and may, like all other persons, be detained if there are legitimate reasons for their arrest and detention, such as criminal charges against them.
24. However, UNHCR has to deal all too frequently with cases in which refugees recognized by UNHCR under its mandate, but not so recognized by the country in which they have sought sanctuary, are detained solely on account of illegal presence in the country. While not in all cases arbitrary, such detention is nevertheless unwarranted in UNHCR’s view and the Office works to find solutions for these individuals which will result in their release. Often the detaining State stipulates that release is conditional on immediate departure from the country, which in effect means that resettlement to a country where refugee status will be recognized becomes the only solution.
IV. CONCLUSIONS
25. Arbitrary detention of asylum-seekers and refugees occurs when they are detained for insufficient reasons, without an adequate analysis of their individual circumstances, without a meaningful opportunity to have their cases reviewed by an independent body, in the absence of an adequate legal framework, or for disproportionate or indefinite periods. Observation suggests that this occurs more and more frequently all over the world and UNHCR abhors this growing practice, which seriously undermines the already-threatened right to seek and enjoy in other countries asylum from persecution.
26. The following proposals are put forward for consideration by the Standing Committee as
representing a minimum set of recommended practices to address the problem of arbitrary detention of asylum-seekers.(a) Governments should ensure that detention of asylum-seekers is resorted to only for
reasons recognized as legitimate, consistent with international standards and only when other measures will not suffice; detention should be for the shortest possible period;(b) The detaining authorities must assess a compelling need to detain that is based on the
personal history of each asylum-seeker;(c) If detained, asylum-seekers should be provided in writing, in a language they understand, with the reasons for detention, together with a written explanation of their rights and how to exercise them;
(d) Each decision to detain should be reviewed periodically as to its necessity and its
compliance with relevant legal standards by a court or similar competent independent and impartial body. Where legal aid is available, asylum-seekers should have access to it;(e) Alternative and non-custodial measures, such as reporting requirements, should always
be considered before resorting to detention;(f) Detained asylum-seekers should be held in conditions appropriate to their status and not with persons charged with or convicted of criminal offences (unless so charged or convicted themselves);
(g) Detained asylum-seekers should be given adequate access to UNHCR, their legal
representatives and their relatives;(h) Time-frames governing the duration of detention of asylum-seekers should not be
unreasonable and should be prescribed by law;(i) Unaccompanied minors should never be detained on account of illegal entry or presence;
(j) UNHCR, legal representatives and, where appropriate, specialized non-governmental
organizations should have access to all places of detention, including transit zones at international ports and airports;(k) All custodial staff should receive training related to the special situation and needs of
asylum-seekers;(l) National authorities should cooperate in the provision of relevant information on asylum
policy, practice and statistics; and(m) Refugees recognized under UNHCR’s mandate for whom UNHCR is actively seeking
long-term solutions should not, in the ordinary course, be detained pending implementation of the solutions.
ENDNOTES
1. The 1951 UN Convention and Protocol Relating to the Status of Refugees and associated Protocol of 1967 define a refugee as
"any person who by reason of a well-founded fear of persecution for reasons of race, nationality, membership in a particular social group or political opinion (a) is outside the country of his nationality and is unable or, by reason of such fear, is unwilling to avail himself of the protection of that country, or (b) not having a country of nationality, is outside the country of his former habitual residence and is unable or, by reason of such fear, is unwilling to return to that country."2. UNHCR statistics accessed at www.unhcr.ch.3. Although there are no formal statistics on this direct point, those received by the Refugee Council of NZ in its monthly meetings with NZIS Officials would confirm this.
4.United Nations. (1999). International Thesaurus of Refugee Terminology. Second Edition (English Version) UN; NY ISBN: 92-1-000052-8.
5. Refugee Council notes of meetings with NZIS officials, 5/11/01.
6. Taken from UNHCR 2002 UNHCR Guidelines on the Detention of Asylum seekers in Discussion Paper No. 1 January 2002 UNHCR Canberra.
7. Refugee Council notes of meeting with NZIS Officials, 21/03/02.
8. Refugee Council notes of meeting with Minister, 14/02/02.
9. Refugee Council notes of meeting with Minister, 24/10/01.
10. Examples can be given of a Sri Lankan being released once an RSB officer said a case would "probably succeed".
11. Andrew Lockhart in letter to Refugee Council of New Zealand, 30 October 2001.
12. Statement by detained asylum seeker when asked if he knew why he was detained.
13. Head of B&I at meeting with Refugee Council 5/11/02.
14. Refugee Council notes of meeting with NZIS officials 13/12/01.
15. Market Manager of B&I at meeting with Refugee Council 5/11/01.
16. Edmund Rice Centre for Justice and Community Education (2001) Debunking Myths about Asylum Seekers. Accessed on 17 March at http://www.erc.org.au/issues/text/se01.htm.
17. US Committee for Refugees; Country Report for New Zealand for 2000.
18. Notes of a meeting between NGOs and Minister of Immigration 24/10/01.
19. Notes of Refugee Council notes of meeting with NZIS with officials 5/11/01.
20. Oxfam Community Aid Abroad (2002) Adrift in the Pacific: the Implications of Australia's Pacific Refugee Solution.
22. Refugee Council notes of meeting with NZIS officials, 14/02/02.
23.The Auckland Refugee Council is currently piloting a two-month trial of systematic visits to MRRC and ACRP, however this only has short term funding.
24. Refugee Council notes of a meeting with the Minister of Immigration 24/10/01.
25. Edmund Rice Centre, above n.15.
26. Refugee Council notes of meeting with NZIS officials 21/03/02.
27. It is very positive that the staff member concerned was suspended immediately the incident was reported and the incident investigated by a well-trained woman refugee worker from outside the system.
28. Refugee Council notes of meeting with NZIS officials on 13/12/01.
29. Report of lawyer meeting with Head of B&I 5/11/01.
30. J Timms. Letter to Senior Planning advisor, Manukau City Council, 17 August, 1999.
31. Information given to refugee lawyer by Papakura Police.
34. R Chan 1999 Letter to J Timms, 10 September.
35. Given this position it would appear asylum seekers, as refugees, are entitled to all services currently offered to quota refugees at MRRC.
36. Alliance Party Refugees Fri 01 Jan 1999. Accessed at www.alliance.org.nz/info, on 17 March 2002.
37. With just over 100 asylum seekers arriving in 6 months, one might again interpret the provisions in place as a deterrent. However, these also have to be read in conjunction with the fact that less airline seats are currently available for travellers coming to New Zealand because of the crisis in the airline industry.
38. Letter from Medical Officer at MRRC to Refugee Council of New Zealand.
39. Notes of meeting with Minister of Immigration, 24/10/01.
40. Auckland City Council convened Refugee Network Meeting, Fickling Centre, Mt Roskill, October 2001.
41.Refugee Resettlement Policy in New Zealand: A report for the Incoming Coalition Government. NGO Sector. (2000, January 5).
42. AFP Monday, January 28; New Zealand wants more Refugees, says PM.
43. Address to the International Law Association in Auckland, 9 September, 1998, "International Law and Refugees in New Zealand".
44. Tony Berends, "Legal bid to free nine detainees", New Zealand Herald, Saturday, 26 January 1991 reporting the comments of Mr Brian Davies, Assistant Commissioner of Police.
45. Trevor Mallard Minister of State Services and Education reported in Oxfam Community Aid Abroad (2002) Adrift in the Pacific: The Implications of Australia's Pacific Refugee Solution.
46. In 1999, the NZIS reacted to the supposedly imminent arrival of seaborne illegals by rapidly passing legislation during an all night sitting of Parliament.
47. Refugee Council notes of meeting with NZIS officials, 21/03/03.
48. Morrison J & Crosland B (2001) The Trafficking and Smuggling of Refugees: the End Game in European Asylum Seekers? UNHCR WP No. 39 accessed at www.unhcr.ch.