Ending the detention of children:

This paper was researched and written by Professor Heaven Crawley, Director of the Centre for Migration Policy Research (CMPR) at Swansea University. The views expressed are those of the author. This paper was commissioned by the Wales Family Returns Group to inform the group s discussions but does not necessarily represent the views of organisations who are members of the group. The full briefing paper is available at www.swansea.ac.uk/cmpr June 2010 Ending the detention of children: Developing an alternative approach to family returns Executive summary The Conservative-Liberal Democrat Government Coalition Agreement (May 2010) included a commitment to end the detention of children for immigration purposes. A review process was established by the Home Office to identify how this commitment would be delivered. This paper on alternatives to detention been produced to inform the review process. It draws upon an existing body of research in the UK and internationally to develop an alternative approach which does not rely upon detention to secure family returns. It is important to acknowledge the wider context within which the detention of families occurs. Alternatives to detention are meaningful only if they exist within a broader system of decisionmaking that ensures ongoing and consistent contact is maintained, and where asylum seekers have information about their rights and are aware of their obligations. 1. Reasons why children are detained The detention of children for immigration purposes has been the subject of considerable criticism. The impact of detention on children s health and well-being has been particularly well documented, with medical studies in the UK and elsewhere finding that detention is associated with post-traumatic stress disorder, major depression, suicidal ideation, self-harm and developmental delay. The UK Border Agency (UKBA) maintains that it is necessary to detain children for three main reasons: that some families will abscond if they are not detained; that families are only detained to affect their imminent removal; and that most families who are at the end of the process are not prepared to leave the UK voluntarily. 1

There is no evidence that families with children systematically disappear if they are not detained. It is widely recognised that the vast majority of asylum seekers currently detained do not pose a threat to security and studies suggest there is little risk of them absconding. Moreover there is some evidence that families with children are less likely to disappear than individuals because they are frequently reliant on access to health and educational services. There is evidence of a gap between policy and practice in relation to the detention of children. Although families should only be detained when their removal is imminent, in practice a decision to detain is often made when there are significant barriers to removal including outstanding legal issues, health problems, or a lack of travel documents. The current low take-up of voluntary return options by families is seen as signaling a resistance to leave the UK. This, in turn, may trigger a decision to detain the family in order to forcibly remove them. In reality it appears that many asylum seekers, including families with children, have very limited information about the asylum process, and in some cases are unclear about their legal rights and options. There is significant evidence of a lack of trust in the ability of the asylum system to deliver a fair hearing, mainly because of inadequate legal support, a lack of accurate translation and poor quality decisionmaking. This evidence suggests that until families have confidence in the asylum system, it is unlikely that large numbers will respect the final decision and return to their countries of origin. The current very low rates of voluntary return are widely viewed as reflecting a lack of meaningful engagement by the Home Office throughout the asylum process and a failure to actively address the fears that many asylum seekers have about returning home. 2. Alternatives to detention There are a number of strategies for facilitating the return of families without resorting to detention. These alternatives are reasonably well-rehearsed. 2.1 Electronic monitoring Electronic monitoring covers a range of different forms of surveillance, which vary in intensity and the degree to which they limit an individual s freedom of movement, liberty or privacy. A number of countries have used various forms of electronic monitoring in order to supervise asylum seekers who would otherwise be detained or who have been released from detention. Although new technologies offer a potentially appealing alternative to detention, evidence from existing schemes suggests that increased electronic monitoring is unlikely to contribute significantly to the end of child detention. This is because electronic monitoring only enables the authorities to know the whereabouts of the individuals concerned. It does not build up trust in decision making or improve the returns process. 2.2 Reporting (including incentivised compliance) Reporting is the most widely used alternative to detention and requires asylum seekers to attend a designated location on a regular basis. The purpose of reporting is to ensure that there is regular contact between those subject to immigration control and the authorities. Because reporting is the simplest and least intrusive of all alternatives to detention it is used in a significant number of countries. 2

Although there are difficulties with current UK reporting schemes for example, an inability of families to report due to illness of financial difficulties there are successful schemes elsewhere. The Assisted Appearance Programme (AAP) in the United States, for example, is a two-way reporting process in which asylum seekers are given information about their case and the opportunity to raise concerns or difficulties. This two-way flow of information builds confidence in the asylum process and enables on-going discussions about options for the future. 2.3 Supervised accommodation Maintaining contact through supervised accommodation can take different forms from large accommodation centres to clusters of private flats or the requirement to live at a designated address. Supervised accommodation is already used by many states, particularly in Europe, to monitor asylum seekers whilst their asylum claim is processed. The added value of supervised accommodation lies primarily in the fact that a case manager is able to develop a close relationship with the family during the decision making process. The extent to which supervised accommodation is an appropriate and less damaging alternative to the detention of children depends on both the form the accommodation takes and any associated restrictions. It also depends on the stage in the process at which supervised accommodation is made available. If only those considered to be at the end of the process and/or absconding risk are placed in supervised accommodation then this does not provide an alternative to detention but rather increases restrictions for people who would not otherwise be detained. It also removes the possibility that a case manager will be able to develop a relationship of trust with the family during the asylum process. 2.4 Case support and contact management Concerns about the quality of asylum decision making can undermine the return of families for whom it is determined there are no protection needs. Families who are considered appeals exhausted may never in fact have had their cases fully and properly considered because of a lack of access to good quality legal advice and representation, including at the appeal stage. In addition it seems likely that there will be some families who do not have protection needs but who are nonetheless deeply anxious about the future for themselves and their children should they return to their country of origin. Various models of case support and contact management have been developed around the world, primarily in Sweden and Australia and most recently Belgium in an effort to improve contact between asylum seekers and decision makers and to increase confidence in the decision making process. This reflects a growing consensus within the literature that a case management approach offers the most appropriate mechanism for delivering an effective and efficient immigration system without the use of widespread detention. A common feature of these models is the presence of a case manager, separate from the decision maker, who is a constant point of contact to guide an asylum seeker through the asylum processes. The case manager ensures that the asylum seeker understands these processes, has access to appropriate legal advice and can 3

meet his or her welfare needs. By reducing the stress experienced by asylum seekers in this way, it is possible to initiate a dialogue which encourages them to consider all of the possible outcomes as they pass through the process. 3. Understanding and assisting the process of return The Government acknowledges that voluntary return is the more sustainable and preferable approach to forced returns. To date however take up of voluntary return options has been very low. There is some evidence from other countries, particularly Canada, that improved marketing of voluntary return options to asylum seekers at the end of the process can increase rates of return. This evidence suggests that information about voluntary return needs to be built into the alternatives that are made available to asylum seekers from the very beginning of the application and throughout the determination process. It should not be provided only at the end of the process. In addition, there is a strong argument for removing the word voluntary when talking about the assistance provided to asylum seekers who decide to return to their countries of origin. It is clear that many families do not want to go home but may eventually decide to do so in the face of limited options should they continue living in the UK. The use of the word voluntary implies a degree of choice and autonomy that many asylum seekers do not consider is available to them. What is important is not whether or not asylum seekers have decided voluntarily to return home but whether, in the context of the choices available to them, they are able to do so safely whilst exercising some control, albeit limited, on the circumstances and timing of their departure. The return to the home country could be timed, for example, to coincide with children s schooling, to allow for goodbyes to be said, for arrangements to be made for the return of possessions, and for housing and schooling possibilities to be identified. This is a different approach because it recognises that return migration is not always a process of simply going home and that asylum seekers need to be reassured not only of their safety upon return but also of the possibilities of re-embedding themselves in the home country. The circumstances of return and the type and timing of assistance provided can substantially contribute to both the willingness of families to return and their ability to become re-embedded in the country of origin. A more integrated approach is required which addresses both material and human needs and focuses on the family s reincorporation into social as well as economic structures. 4. Enforced removal options The options for enforced removal without the use of detention are limited. These include separating parents and children and detaining one or more parents, same-day removals and self check-in. The separation of children from parents is a difficult and controversial issue and one that is never far beneath the surface in discussions about the detention of children in the immigration context. A number of countries, most notably Sweden, sometimes separate children from one of their parents where a family s identity cannot be ascertained or there is a question of threat to national security. This approach can only be understood in the context of a very different system of support for asylum 4

seekers which is associated with rates of detention which are significant lower than in the UK and which are subject to statutory time limits (maximum three days). Although evidence on the impact on separating children from parents in the immigration context is limited, there is broad consensus that such an approach is excessively penalising and traumatic for children and parents. It would also add significantly to the costs of the asylum system and create additional difficulties for local authorities who are already struggle to support separated asylum seeking children. A second potential option for removing families without the use of detention is the reintroduction of same-day removals. There are significant practical barriers to same-day removals given the complexity and circumstances of family cases. Moreover this approach would not meet the Coalition Government s commitment to a humane and dignified approach to returns for families with children. A family could be asked to comply with Removal Directions through self-check in. Self check-in allows for Removal Directions to be set, and for a family to make their own way independently to the airport. Although self check-in is currently in use, there is no evidence available on the extent to which self-check-in functions effectively or on factors that make self-check in more or less likely to take place. It seems unlikely that self check-in will be effective where a family is simply given a date to arrive at the airport. Rather families should be supported to return on an agreed date with appropriate assistance and support. The time made available for families to self check-in once Removal Directions are set should not be arbitrary but rather should be based on the needs and best interests of children. A period of four weeks would seem to be the minimum amount of time needed by families to put their affairs in order. The date of the check-in should also be sensitive to the particularities of a family s circumstances. It would be inappropriate, for example, to remove children during an examination period or on their birthday in order to meet a pre-designated date or timeframe. 5. An alternative approach to family returns The alternatives to detention discussed in this paper focus on developing mechanisms for improving contact by providing support and information to asylum seekers from the beginning of the process and on enhancing the quality and credibility of the asylum determination process overall. These mechanisms include reporting, electronic monitoring, supervised accommodation, incentivised compliance and the introduction of a case work support and management system. The case work support and management system appears to offer the best possibility for ending the detention of children whilst increasing the confidence and trust in the system needed for families to return where their cases have been fully and properly considered. There have been several (ongoing) pilot schemes providing alternatives to detention for families with children in the UK. Although there are elements of these schemes which might usefully be replicated (for example, allowing families time to make practical preparations for their departure which, in turn, enables teachers to provide appropriate support to children and their classmates), most fail to deliver the benefits of the case support and contact 5

management model because information and support is provided to families only at the end of the process. An end-to-end case management approach is needed to enable a level of trust to be developed between client and case manager during the asylum process. The case management approach should be independent of the decision making process to ensure that asylum seekers have confidence in the information they are given about the options for them and their children. Quality legal advice and representation can provide an important mechanism for ensuring compliance by establishing confidence in the decision making process generally and by making applicants aware of their rights and obligations, acting as a conduit for flows of information between the applicant and the Home Office and for ensuring that families are aware of all the choices and options available to them, including the support available for return and reintegration. Quality legal advice and representation should be made available during the decision making process and after status has been refused. At the same time the current approach to voluntary returns needs to be reconceptualised. Existing programmes for voluntary return are under-utilised and undervalued not simply because of a lack of information or awareness but because of the way in which the process of return for families is understood. Removing the word voluntary reflects the fact that this is not necessarily the family s preferred option or choice and that appropriate structures will need to be put in place to support the family upon return. This is necessary to ensure that families are able to return with dignity and a sense of purpose. Finally, there may be some families who are unwilling to return to their countries of origin even if there are significant improvements in the quality of decision making and communication between the family and UK Border Agency. In these cases enforced removal may be the only option. It is important to emphasise however that all of the evidence from the UK and elsewhere suggests that the implementation of the alternative approach to family returns as proposed in this briefing paper - would significantly reduce the occasions in which this was deemed necessary or appropriate. The full briefing paper Ending the detention of children: developing an alternative approach to family returns can be downloaded at www.swansea.ac.uk/cmpr 6