Alternatives to detention for asylum seekers and people in return procedures
release on bail, designated residence or regular reporting to
authorities.
Report of the Working
Group on Arbitrary
Detention,
18 December 1998,
E/CN.4/1999/63
The Commission on Human Rights requested the Working Group to pay
attention in the reports received to the alleged arbitrary detention of
immigrants and asylum-seekers. In order to do so, the Working Group
developed some guidelines and 14 guarantees meant to help determine
the arbitrariness of the detention depending on whether or not the alien
is able to enjoy all or some of the guarantees. Guarantee 13 addresses
alternative to detention:
Guarantee 13: Possibility for the alien to benefit from alternatives to
administrative custody.
Special Rapporteur on the human rights of migrants
Report of the Special
Rapporteur on the
human rights of migrants,
François Crépeau,
Regional study:
management of the
external borders of the
European Union and its
impact on the human
rights of migrants,
24 April 2013,
A/HRC/23/46
48. It should of course be noted that, in fact, the Return Directive
stipulates that detention should be a measure of last resort. Yet, in
practice, few viable alternatives to detention appear to be explored by
the European Union institutionally and by European Union member
States individually. In the countries visited the Special Rapporteur
witnessed an almost complete absence of readily implementable widescale alternatives to detention, including for children.
Report of the Special
Rapporteur on the
human rights of migrants,
François Crépeau,
2 April 2012,
A/HRC/20/24
48. […] Research has found that over 90 per cent compliance or
cooperation rates can be achieved when persons are released to
proper supervision and assistance. The alternatives have also proved to
be considerably less expensive than detention, not only in direct costs
but also when it comes to longer-term costs associated with detention,
such as the impact on health services, integration problems and other
social challenges.
General recommendations:
[…] 92. Promote viable alternatives to detention, and not insist on
further entrenching detention as a migration control mechanism
through support for expanded networks of detention centres.
Detention should always be a measure of last resort, and children
should never be detained.
53. In the Special Rapporteur’s view, the obligation to always consider
alternatives to detention (non-custodial measures) before resorting to
detention should be established by law. Detailed guidelines and proper
training should be developed for judges and other State officials, such
as police, border and immigration officers, in order to ensure a
systematic application of non-custodial measures instead of detention.
Non-custodial measures should be subject to legal review, and
migrants who are subject to non-custodial measures should have
access to legal counsel. When considering alternatives to detention,
States must take full account of individual circumstances and those
with particular vulnerabilities, including pregnant women, children,
victims of trafficking, victims of torture, older persons and persons with
disabilities. The least intrusive and restrictive measure possible in the
individual case should be applied. Legislation should establish a sliding
scale of measures from least to most restrictive, allowing for an analysis
10