Alternatives to detention for asylum seekers and people in return procedures
of proportionality and necessity for every measure. Some noncustodial measures may be so restrictive, either by themselves or in
combination with other measures, that they amount to alternative
forms of detention, instead of alternatives to detention. When
considering whether the measures applied amount to detention, the
cumulative impact of the restrictions as well as the degree and intensity
of each of them should also be assessed.
56. Alternatives to detention may be defined as “any legislation, policy
or practice that allows for asylum seekers, refugees and migrants to
reside in the community with freedom of movement while their
migration status is being resolved or while awaiting deportation or
removal from the country [International Detention Coalition, October
2015 p. 2].”
Paragraphs 57 to 65 explain different type of alternatives to detention:
57. Registration with the authorities
58. Deposit of documents
59. Release on bail, bond, or under surety/guarantor
60. Periodic reporting to State officials
61. Case management/supervised release
62. Designated residence
63. Electronic monitoring
64. Home curfew/house arrest
65. Voluntary return programmes
Paragraph 66 suggests safeguards States should respect for the success
of alternatives to detention: provide clear information about the
measure and access to legal advice; issue identification documents;
ensure adequate standard of living and consider allowing access to the
labour market; avoid policies that restrict the access to housing, basic
welfare and health.
68. Detention for immigration purposes should never be mandatory or
automatic. According to international human rights standards, it should
be a measure of last resort, only permissible for the shortest period of
time and when no less restrictive measure is available. Governments
have an obligation to establish a presumption in favour of liberty in
national law, first consider alternative non-custodial measures,
proceed to an individual assessment and choose the least intrusive or
restrictive measure.
Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment
Report of the Special
85. With regard to the vulnerability of children deprived of their liberty
Rapporteur on torture
and policy reform, the Special Rapporteur calls upon all States:
and other cruel, inhuman (m) To ensure that immigration detention is never used as a penalty or
or degrading treatment
punishment of migrant children, including for irregular entry or
or punishment, Juan E.
presence, and to provide alternative measures to detention that
Méndez, 5 March 2015,
promote the care and well-being of the child;
A/HRC/28/68
11
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