Current Issues
The detention and removal of asylum seekers
E-Brief: Online Only issued 5 July 2005
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:
-
Human Rights and Equal Opportunity Commission,
Those who ve come across the seas: Detention of unauthorised
arrivals, 1998.
-
Report of inspections of detention centres
throughout Australia, Joint Standing Committee on Migration,
August 1998.
-
Not the Hilton: Immigration Detention Centres:
Inspection Report, Joint Standing Committee on
Migration, September 2000.
-
A Sanctuary under Review: an examination of Australia s Refugee and
Humanitarian Determination Processes Senate Legal and
Constitutional References Committee, June 2000.
-
Commonwealth Ombudsman,
Report of an Own Motion Investigation into The Department of
Immigration and Multicultural Affairs Immigration Detention
Centres, 2001.
-
Joint Standing Committee on Foreign Affairs, Defence and Trade,
A report on visits to immigration detention centres, 2001
-
Philip Flood
Report of inquiry into immigration detention procedures,
2001
-
HREOC,
National Inquiry into Children in Immigration Detention,
2004
-
Australian National Audit Office, Performance Audit Report No.
54,
Management of the Detention Centre Contracts, Department of
Immigration and Multicultural and Indigenous Affairs, 2004.
International
UNHCR
Europe
-
European Commission
asylum page
-
European Commission Justice and Home Affairs
studies in asylum policy in the EU and reports on member
states.
European Commission statistical data and documents on migration
including background documents.
-
European Commission Directorate General for Justice and Home
Affairs,
Study on the legal framework and administrative practices in the
Member States of the European Communities regarding reception
conditions for persons seeking international protection. Final
Report Part A: Comparative Analysis of Reception Conditions for
Persons seeking protection in the Member States of the European
Union, November 2000.
-
European
Council for Refugees and Exiles (ECRE), a European network
composed of 67 organisations which work to protect refugees and the
right to asylum. ECRE European asylum
systems 2003 04 online reports, including sections on
application procedures, detention, and deportation from: Austria ,
Finland,
France,
Greece,
Ireland,
Netherlands,
Switzerland,
and Spain.
-
Refugee
policies in selected OECD countries
-
T. Hatton Refugees, asylum
seekers and policy in Europe, 2004.
-
M. Gibney Asylum policy in the
West: past trends, future possibilities, 2003
-
Council of Europe asylum page
-
European Refugee Fund The European Refugee Fund (ERF) was
established via a Council of Europe Decision of 28 September 2000
(referred to as Decision 2000/596/EC) which stated that
implementation of actions to support refugees through the fund was
to be devolved to individual Member States. Funding was to be
targeted towards providing appropriate reception conditions,
encouraging social and economic integration, enabling displaced
persons to make an informed decision to leave the territory of the
Member States and return home, if they so wish.
-
EurAsylum Ltd, is a company that was
established in 2001 to provide research, evaluation and consulting
services dedicated solely to issues of immigration control and
asylum policy in Europe and internationally. EurAsylum specialises
in the analysis of developments affecting policy and legal
decisions in the field of asylum determination procedures and
immigration control processes internationally. There are many links
to UN and other international organisations, statistical data,
journals and immigration authorities for many countries.
-
Detention in Europe, non-profit information
leaflet no. 22.
UK
-
UK Immigration home page
-
Asylum
and migration; a review of Home Office statistics
Great Britain. National Audit Office, 2004
-
Amnesty
International Report on Detention in the UK, 20 June 2005
-
UK Home Office An
assessment of the impact of asylum policies in Europe
1990-2000
-
Politics.co.uk
detention centres brief
-
Asylum Statistics United Kingdom 2003 2nd
edition 11/04 Tina Heath, Richard Jeffries and James Purcell 24
August 2004
-
Asylum numbers down, new drive on removals,
Home Secretary press release, 24 February 2004
-
Rising Numbers, Rising Anxieties, by
Dhananjayan Sriskandarajah and Francesca Hopwood, Road Institute
for public policy Research, May 2005.
USA
Sweden
Canada
Deportation/repatriation
-
Council of Europe
Guidelines on forced return
-
Liz Fekete, The
Deportation Machine: Europe, asylum and human rights, UK
Institute of Race Relations, 2005
-
A. Bloch and L. Schuster
At the extremes of exclusion: deportation, detention and
dispersal, Ethnic and Racial Studies, 1 May 2005
-
Gibney, Matthew J. Deportation
and the liberal state: the forcible return of asylum seekers and
unlawful migrants in Canada, Germany and the United Kingdom,
UNHCR research, 2003.
-
Malkin, Michelle The
deportation abyss: it ain t over til the alien wins , Center
for Immigration Studies (CIS) 2002.
-
T. Hatton
Seeking asylum in Europe, 2004
Overseas/International Non-Government Organisations (NGOs)
sites
Parliamentary Library publications
-
Bills Digest Migration
Amendment (Detention Arrangements) Bill 2005
-
Refugees and asylum seekers: a guide to key
resources and recent developments, E-brief, 2004
-
Temporary Protection Visas Research
Note no. 51, 2003 04
-
Protecting Australia's Borders Research
Note no. 22, 2003 04
-
Children in Detention, E-brief, 2003
-
Bills Digest Migration
Amendment (Duration of Detention) Bill 2003
-
Australia and Refugees, 1901-2002: Annotated
Chronology Based on Official Sources. A summary
is also available (Chronology no. 2, 2002 03)
-
The East Timorese asylum seekers: legal issues and
policy implications ten years on, Current Issues Brief
no. 17, 2002 03
-
Bills Digest Migration
Legislation Amendment (Immigration Detainees) Bill (No. 2)
2001
-
Refugee
law: recent legislative developments, Current Issues
Brief no. 5, 2001 02
-
The
detention of boat people, Current Issues Brief no. 8,
2000 01
-
The problem with the 1951 Refugee Convention,
Research Paper no. 5, 2000 01
-
Boat people, illegal migration and asylum
seekers: in perspective, Current Issues Brief no. 13,
1999 2000
For copyright reasons some linked items are only
available to members of Parliament.
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