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Contents

Recent Developments
The development of detention policy
The issue of removal
The debate
Overseas comparisons
Government Responses
E-links


Current Issues

The detention and removal of asylum seekers

E-Brief: Online Only issued 5 July 2005

Janet Phillips, Information/E-links
Adrienne Millbank, Analysis and Policy
Social Policy Section

Introduction

This e-brief summarises recent developments and key issues in the debate about mandatory detention in Australia. It provides links to web sites and material covering detention policy and practice in Australia, and detention and removal policies and practices in the UK and other comparable countries.

Recent developments

Although only one boat has reached Australia since the Tampa was turned away in August 2001, Australia’s immigration detention policy has remained an area of public contestation and debate. The Cornelia Rau affair has led to scrutiny, through the Palmer Inquiry, of the administration of the Government’s policy. The situation of boat people held in detention for three years or longer has provided the impetus for review of the policy itself. The Member for Kooyong, Mr Petro Georgiou, undertook in May 2005 (unless changes were made to the policy) to introduce private member’s Bills which would have effectively ended indefinite detention for asylum seekers. Detention for new asylum seekers would have been limited to 90 days, with access to judicial review; families with children would not have been detained; and all long-term detainees (12 months or longer) would have been released into the community. These Bills (Migration Amendment (Act of Compassion) Bill 2005, and Migration Amendment (Mandatory Detention) Bill 2005) were introduced into the Senate on 16 June 2005 by Greens Senator Kerry Nettle.

On 17 June 2005, the Prime Minister announced changes to the policy which he presented as preserving the broad framework and principle of mandatory detention, but with a ‘softer edge’. Families with children will be placed in community detention arrangements. Time limits of 3 months will apply to both the primary decision and the merits appeal decision by the Refugee Review Tribunal. Ombudsman’s reports and recommendations on people in detention longer than 2 years will be tabled in Parliament, and the immigration minister’s discretionary powers to grant visas will be extended. The Migration Amendment (Mandatory Detention) Bill 2005 was subsequently introduced into the House on 21 June by the Minister for Citizenship and Multicultural Affairs, the Hon. Peter McGauran.

The development of detention policy in Australia

Prior to 1992, boat people were held in detention under the Migration Act 1958, but on a discretionary basis. Mandatory detention for unauthorised arrivals was introduced under the Migration Amendment Act 1992, as part of the codification of migration policy. The rationale given by the then immigration minister, the Hon. Gerry Hand, in his second reading speech was that detention would facilitate the processing of refugee claims, prevent de facto migration and save the cost of locating people in the community. On 1 September 1994 the Migration Reform Act 1992 commenced under immigration minister Senator the Hon. Nick Bolkus. This introduced mandatory detention for all ‘unlawful non-citizens’ that is for everyone without a valid visa. Under the legislation as it now stands, if an officer reasonably suspects that a person is an unlawful non-citizen, the officer must detain the person (section 13). The intention as described in the second reading speech was to effectively regulate the determination of refugee status and ‘removal of people who do not establish an entitlement to be in Australia’.

Amendments introduced since 2000 have expanded powers to administer detention centres (Migration Legislation Amendment (Immigration Detainees) Act 2001), and prevented court orders for release (Migration Amendment (Duration of Detention) Act 2003). Some softening of the policy was introduced in 2001 by the then immigration minister the Hon. Philip Ruddock, through a residential housing project for women and children and community detention arrangements. As noted above, legislation, Migration Amendment (Detention Arrangements) Act 2005, giving effect to further ‘softening’ of detention policy, described above, was introduced into the House by the Minister for Citizenship and Multicultural Affairs, the Hon. Peter McGauran, on 21 June 2005. In his second reading speech he emphasised that while greater flexibility was being introduced, the broad framework of the Government’s approach to unauthorised arrivals remained unaltered: the Government remained committed to mandatory detention along with the excision of territory for migration purposes, offshore processing and, if necessary, turning boats around at sea.

The issue of removal

Under Australia’s migration law, unauthorised arrivals (as ‘unlawful non-citizens’) must be detained until they are either given a visa or removed from the country. As at 8 June 2005 there were 885 persons in immigration detention centres in Australia. The majority of these, over 80 per cent, are visa overstayers or violators who are ‘compliance cases’, that is they had failed to leave voluntarily. They are detained (for the most part) for short periods while their removal is organised. People who enter ‘lawfully’ on valid visitor visas and subsequently claim asylum are not detained: they are given bridging visas. Some unauthorised air arrivals are detained; many are turned around after being denied entry at airports. The primary target for Australia’s mandatory detention policy is boat people. The rationale for its introduction suggests that the primary reason for detaining boat people asylum seekers for as long as it takes to process their claims for protection visas has always been that it makes it easier to remove them when these claims are rejected. The primary objective has always been to prevent de facto migration.

Departmental fact sheets show that about 9500 boat people arrived between 1 July 1999 and 22 August 2001, many from Middle Eastern countries. Most were given protection visas. About 660 had been removed. Of the 190 who remained in detention at 1 April 2005, nearly all had exhausted avenues of appeal: they remained in detention because returning failed asylum seekers to countries like Iran is difficult and time consuming.

The debate

The reasons for Australia’s mandatory detention policy put forward at the outset by immigration minister the Hon. Gerry Hand in 1992 under the Hawke Government are, in essence, the same as those put forward by immigration minister The Hon. Philip Ruddock ten years later under the Howard Government. Successive governments and other supporters of Australia’s mandatory detention policy have claimed that it is an integral part of the highly developed visa and border controls necessary to maintain the integrity of our world class migration and refugee resettlement programs. They point to the problems caused by asylum-driven migration in European countries. They point out that where detention has been prolonged this has been by detainees’ own actions and determination to remain in a more prosperous country. Detainees have been free to leave at any time.

Opponents have questioned the policy’s deterrent value, given that it pre-dated the most recent and largest wave of boat people. They claim that unauthorised arrivals break no law by seeking asylum, and that there is no ‘queue’ to jump in countries of first asylum like Pakistan. They argue that the policy has shamed Australia internationally. They claim that prolonged detention has been psychologically damaging, lacking in compassion, and unnecessarily punitive given that the boats stopped coming in August 2001. They further claim that the policy has been administered in an inflexible way through an ‘out of control’ department with a ‘compliance culture’. (See links to NGO and advocate groups below for comment.)

Overseas comparisons

UNHCR statistics show that Australia has experienced fewer asylum claims than other industrialised countries, especially the high asylum countries of Western Europe. Australia received 5860 claims in 2002, 4300 in 2003, and 3100 in 2004. The UK received 103 080 asylum claims in 2002, 60 050 in 2003, and 40 200 in 2004.

Australia is the only country that has mandated the detention of all unauthorised arrivals throughout the refugee determination process. Other countries have however in recent years expanded their use of detention, as part of tougher border control and asylum regimes. In Australia, according to the departmental annual report, a total of 7492 people spent some time in immigration detention during 2003-04. The UK Home Office does not publish annual cumulative figures on people held in immigration detention. A recent Amnesty International report on the detention of asylum seekers in the UK estimated the number of people detained in immigration detention in the UK in 2003 to be 27 000, and in 2004 to be over 25 000.

As noted in reports prepared for the European Commission as part of the EU project to ‘harmonise’ asylum practices, asylum seekers in Western European countries are now commonly detained during ‘fast track’ or ‘accelerated’ processing, if their claims are deemed ‘manifestly unfounded’ or if they come from or through a country deemed ‘safe’. They are increasingly being detained at the ‘end stage’ of processing if they are refused refugee status. Failed asylum seekers who have been living in the community are also being detained in attempts to meet government-set ‘removal’ targets. The UK Government, through its Five year strategy for asylum and immigration, presented to parliament by Home Secretary Charles Clark in February 2005, is developing ‘removal’ centre capacity (currently about 3000) to meet a target of removals to exceed the number of ‘unfounded applications’ by the end of 2005 ‘so that we can start making in-roads into the backlog’. The aim over time, as asylum intakes fall and removals are increased, is to ‘move towards the point where it becomes the norm that those who fail can be detained’.

Besides lower numbers of asylum claims, Australia has also experienced much lower levels of ‘illegal’ immigration. Australia however has much larger and more highly developed official or ‘managed’ migration and refugee resettlement programs than most other countries. All countries have faced difficulties with overcrowding, mental health issues, psychological disturbance and self-harm by detainees in immigration detention or ‘removal’ centres. Refugee support groups and other concerned groups, such as the UK Institute of Race Relations, have complained about the coercion involved in ‘voluntary’ removals, and the brutality and humiliation involved in forced removals. Researchers, for example Matthew Gibney, have questioned whether removal targets such as those that have been set in the UK are feasible.

As the recent Amnesty International report shows, immigration detention has become a focus of protest and dissent for refugee and human rights advocates in the UK. The removal of failed asylum seekers, many of whom have been living in the community for years, has also become a politically contentious and sensitive issue in countries like the UK and the Netherlands. The non-removal of failed asylum seekers who have joined growing illegal populations in these countries however has long been a more salient political issue; it has reduced public confidence in asylum systems and procedures. Majority public opinion in countries affected by asylum seeker inflows favours tough border control, detention and removal policies; as shown in recent polling in the UK for example. This coincides with concern for the situation of individuals in prolonged detention and/or facing forced removal.

Government responses

Governments in all industrialised countries are having to find ways to accommodate failed asylum seekers because detaining them for prolonged periods and removing them is difficult and costly for all concerned. Backlogs of asylum seekers and growing illegal populations have commonly been addressed in Western European countries through amnesties. The last general amnesty in Australia was in 1986; amnesties have since been considered inimical to the effective management of migration. In Australia, what could be called ‘quasi-amnesties’ have been created to accommodate individuals or groups of people for whom detention and removal has been too hard or too harsh. This has been done by creating special visa classes (for example for Chinese students who were in Australia at the time of the Tiananmen Square demonstrations in 1989), or by using the immigration minister’s non-compellable powers of discretion to grant visas (for example for a number of East Timorese who came to Australia as visitors in the early 1990s and subsequently applied for asylum).

All countries are trying to speed up the processing of asylum claims. While there has been a convergence in Western countries’ asylum policies and practices, this has been in the direction of tougher deterrence and control.  The drop in asylum claims in Western European countries has resulted in plans to establish offshore processing centres along the lines of Australia’s Pacific Solution being mothballed. As the UK Home Secretary’s statement to parliament in February 2005 indicates, it has not resulted in any diminution of border control measures. The virtual absence of boat arrivals over the last few years has enabled Australia’s mandatory detention policy to be delivered in a more ‘compassionate’ and ‘flexible’ way. It is unlikely that it will be ended in the foreseeable future.

E-links

Australia

Department of Immigration, Multicultural and Indigenous Affairs

Numbers of boat (and illegal air) arrivals since 1989, and statistics and policy on asylum seekers, visa overstayers, unauthorised arrivals and detention arrangements are in regularly updated fact sheets. Also on the departmental web-site:

Ombudsman

Human Rights and Equal Opportunity Commission (HREOC)

Non-Government Organisations (NGOs) sites

Parliamentary and other inquiries

The detention regime prior to 1992 is described and proposed changes examined in the report of the Joint Standing Committee on Migration Regulations, Australia’s Refugee and Humanitarian System: Achieving a Balance Between Refuge and Control, tabled August 1992. The mandatory detention policy introduced from 1 September 1994 is exhaustively examined in the report of the Joint Standing Committee on Migration in its report Asylum, Border Control and Detention, tabled February 1994. Subsequent inquiries include:

International

UNHCR

Europe

UK

USA

Sweden

Canada

Deportation/repatriation

Overseas/International Non-Government Organisations (NGOs) sites

Parliamentary Library publications

For copyright reasons some linked items are only available to members of Parliament.

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