Commission Website: National Inquiry into Children in Immigration Detention

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Submission to the National

Inquiry into Children in Immigration Detention from

Michael

Williams

The following material

was provided to the Inquiry by Michael Williams, Chairman of the Swedish

Network of Refugee and Asylum Support Groups in a series of emails in

April 2003.

Tuesday, 8 April 2003

I enclose part of

an address I gave to the Japanese Bar Association in August 2001 on the

topic. These regulations still apply. Regarding children, they cannot

be placed in detention unless they have previously been asked to report

regularly to the authorities ( 'uppsikt' in Swedish): This can be to the

police or officials of the Migration Board. Children can be detained with

one of their parents for a maximum of 72 hours and under exceptional circumstances

another 72 hours. However unaccompanied minors cannot be detained at all.

If you wish I can send you the section of the Swedish Aliens Law that

deals with these rules as well as the guideline notes of the Migration

Board - both unfortunately only in Swedish. However in my essay I do translate

quite a lot of these.

Sweden does not have

a mandatory policy of detaining all asylum seekers who claim asylum without

identity documents. As you will see in my presentation the law allows

for this but it is not mandatory.

I hope you will find

this information useful. I apologise for the delay. The Migration Board

website provides some information in English www.migrationsverket.se

If you have any further

queries do not hesitate to contact me.

Yours sincerely

Michael Williams

Chairman

of the Swedish Network of Refugee and Asylum Support Groups (FARR)

Today I have been asked to focus on the issue of the detention of asylum

seekers and present the Swedish model. My presentation will be structured

in the following way. First I will present the legal framework which governs

who may be detained, when and for how long. Then I will present the guidelines

for detention used by the Migration Board. I will then try to evaluate

the current system and describe some protests that have been made against

the existence of detention centres; the experiences of NGOs visiting these

centres, some statistical data and a brief comparison with some other

countries in the European Union. I will also briefly refer to the positions

on detention of UNHCR and the European Council on Refugees and Exiles,

an umbrella organisation for over 70 NGOs in Europe active in the field

of refugee protection.

The legal framework

Detention

According to Chapter

6 Section 2 of the Aliens Act, an alien over 18 years of age may be detained

in a special detention centre if:

(a) his/her identity

is unclear;

(b) detention is necessary for the investigation of his/her right to

stay in Sweden;

(c) it is likely that he/she will be refused entry or expelled, or this

is necessary to the enforcement of an existing refusal of entry or expulsion

order.

In principle, detention

under paragraph (c) can only be ordered if there are some reasons to presume

that the alien otherwise will go into hiding or will engage in criminal

activities in Sweden.

Detention under paragraph

(b) is limited to 48 hours. In the other cases, it is limited to two weeks

unless there are exceptional grounds for a longer period. However, if

the refusal of entry or the expulsion order has already been made, the

detention period may last up to two months, and even longer if there are

exceptional grounds. Due to the possibility of extending the detention

on exceptional grounds, there is no limitation to the overall detention

period. However the decision to keep a person in detention must be reviewed

every two months.

Decisions regarding

detention may be appealed to the County Administrative Court. A detainee

always has a right to legal counsel if detained more than three days.

The rules regarding

children are stated in chapter 6 section 3. A child may be put into detention

if the case will be decide under the accelerate procedure and it is highly

probable that the case will be rejected. This happens mainly in expulsions

to safe third countries which the applicant has passed through For the

European Union there is a special convention called the Dublin convention

with rules to decide which country is responsible for processing an asylum

application. However there must be a clear risk that the child would otherwise

disappear and thereby prevent the expulsion from taking place. Furthermore

the alternative measure of surveillance must first be used before resorting

to detention

A child may also

be placed in detention if the child has previously been under surveillance

and that has not proved sufficient to allow the expulsion order to be

carried out. The child must not be separated from its legal guardian or

if they are more than one not from the other, by placing one guardian

and the child in detention. If the child has no legal guardian detention

can only be used in very exceptional cases

When a child is placed

in detention there is a maximum time limit of 72 hours after which the

child must be released. Only in very exceptional circumstances can a child

be detained for a further 72 hours.

Four authorities

have the power to make decisions on detention The police authority can

make such a decision before an alien has his asylum case registered at

the Migration Board and also in cases where aliens have been expelled

on grounds of criminality and served their sentence but are still in the

country. The police is also responsible for decisions on detention when

the Migration Board has handed over a case to them. This happens when

the Migration Board no longer considers that the persons will leave the

country on a voluntary basis even though their appeal has been rejected.

Normally a rejected asylum seeker has 14 days to leave the country voluntarily

although this may in practice be extended if the circumstances warrant.

The Migration Board

can make decisions on detention as long as they are handling the asylum

case. The Aliens Appeals Board can make decisions on detention while dealing

with an appeal but once the decision has been taken the responsibility

for carrying out a decision on detention falls on the Migration Board

unless the case is a new application and the expulsion of the asylum seeker

is already the responsibility of the police. If a case is being dealt

with by the government it is the minister responsible who decides on whether

an alien should be detained. The police are also allowed to put an alien

in detention even if this is not their formal responsibility when circumstances

so require - for example the risk of the alien disappearing. Even the

coastguards and customs officers can detain an alien if there is a danger

that the alien will go into hiding. However the detention must be reported

immediately to the police, who then take over responsibility.

Since October 1 1997

the Migration Board has taken over responsibility for implementing decisions

on detention and for running detention centres. Prior to that it was the

responsibility of the police authorities, who sometimes used private security

companies to supervise the detention centres. They also used police cells

frequently and sometimes prisons. This system was criticised because asylum

seekers should not be treated as criminals.

In the current system

the officers of the Migration Board are not allowed to use force to implement

a decision. They must therefore call on the police for assistance to for

example escort an alien to or from the detention centre.

There are currently

four detention centres in Sweden in or near the major cities of Stockholm,

Gothenburg and Malmö and in the town of Flen with a total capacity

of ................ The Aliens Act contains specific rules on how the

detention centre should be run.

Aliens who are held

in detention must be treated humanely and their dignity should be respected.

By humane treatment is meant:

the foreigner is

always the focal point and his or her case must be dealt with in a legal

safe and expedient manner

a good relationship

must be established between the detainee and the staff right from the

very outset of the detainees entry to the premises

the foreigner must

be able to feel secure and safe in this exposed situation

the staff must

be sensitive to the needs of the detainee

Dignity should be

respected based on the guidelines issued by UNHCR which state that the

conditions for detainees should be humane with respect for the inherent

dignity of the person.

The detainees are

deprived of their freedom without being sentenced or being suspected of

criminal activity. Depriving them of their freedom leads to many similarities

with the prison service but the task is basically different, which is

why the laws differ. Conditions in the detention centres should be similar

as far as is possible to those at the regular reception centres run by

the Migration Board . The only difference should be that the detainees

are in a closed building and therefore have certain restrictions to their

freedom of movement. Coercion or limitations in freedom of movement should

not exceed what is necessary based on the grounds for the deprivation

of freedom.

Activities at the

detention centre should be formed based on the least impingement on the

integrity of the individual and his or her rights. This means that all

detainees have the right to send and receive letters to and from anyone

they wish and that men and women need not share rooms unless they belong

to the same family. The detainee also has the right to contact other people

than detainees and must not be locked up in his or her room unless there

are special ground for this. It is also natural that the detainee be allowed

to keep valued personal belongings.

Religious observance

is possible for persons of all creeds. It is a basic right according to

the constitution. However this does not mean they can leave the centre

to go to a mosque, shrine or church. Instead a neutral room is reserved

for religious observance at the detention centre. Detainees are also able

to request visits from pastors, imams and others who are important in

their religious observance. Some faith communities see to it that their

leader or a representative visits the detention centre regularly.

While at the detention

centre the detainee has the right to a daily allowance in the same way

as other asylum seekers. Daily activities are organised for both their

physical and mental health. There is a library with access to internet,

a number of other computers, a gym room and an enclosed outdoor area for

ball games. Detainees are expected to help out with activities of daily

living, keeping the rooms tidy and helping with work in the kitchen. If

they refuse then their daily allowance can be reduced.

The detention centres

have to take responsibility for all those aliens who have received an

expulsion order but with regard to persons who have an expulsion order

because they committed a serious crime these persons can be detained either

by the prison authority or the police instead. Furthermore, detainees

who pose a real threat to others can also be removed to police custody.

However a child under 18 may never be placed in a prison or in police

custody.

In other cases a

problematic detainee can be confined to his or her room if this is necessary

for the orderly running of the centre and for safety reasons or if the

foreigner represents a danger to him or herself or to others. Such a decision

must be reviewed as often as is required but at least every third day.

If the person is a danger to himself then a medical examination should

be promptly ordered. There is no requirement that detention confined to

a room at the centre must be tried before removing someone to police custody

or to the prison services.

Detainees are allowed

visitors and to receive and make phone calls on an unrestricted basis

but there can be limitations based on practical reasons regarding the

safe running of the detention centre. Drunk visitors will not be admitted,

nor will visits in large number sat the same time. Visiting hours should

be generous and flexible and at times suitable to the visitor. More flexibility

is shown to members of the family than to adult friends of the detainee

These visitors can never be searched bodily however if it is necessary

then a visit can be supervised for reasons of security. But a visit by

legal counsel can only be supervised at the request of the detainee or

legal counsel. If it is suspected that illegal objects have been handed

over to the detainee then the detainee may be bodily searched after the

visit. Visits should in general take place privately in a suitable room.

If a visit is denied for some reason then the detainee has the right to

appeal the decision. If a visitor does not wish to give his or her name

then this is not in itself grounds to deny a visit, nor is it in itself

sufficient grounds to decide to supervise the visit.

A detainee is not

allowed to have alcoholic drinks or other stimulants or any object that

can hurt anyone or be to the detriment of the keeping of order at the

detention centre. basically the detainee should be allowed to retain personal

objects of value and other belongings. Belts and braces are not normally

taken from the detainee nor are objects such as personal cutlery, perfume

bottles, deodorants. However the possession of a knife is not allowed.

Regarding medicine there are restrictions to possessing many sleeping

tablets. Since the staff at the detention do not have medical training

it can sometimes be difficult to know what to decide in individual cases.

However they can refer to guidelines issue by the Social Welfare Board

Detainees have the

right to freedom of information and the right to express opinions in the

same way as other citizens. Therefore no restrictions can be place on

the individual's possession of certain newspapers or magazines. However

the Migration Board does have a responsibility to limit the spreading

of or access to for example pornographic materials or TV programmes which

can be found offensive by other detainees.

If the detention

centre staff suspect that a detainee may be in possession of forbidden

substances such as drugs, alcohol, objects that can harm others or be

a threat to order at the centre then a body search can be ordered. The

detainee is often searched by the police before arriving at the centre.

If that has taken place then the detainee is not body searched on arrival.

If a body search is ordered then the law stipulates that it must not be

carried out more thoroughly than the situation requires. Respect should

be shown towards the detainee and a witness should be present unless this

is declined by the detainee. Women may not be bodily searched in the presence

of other men than doctors or qualified nurses. There are different degrees

of body searches. The Migration Board staff are never allowed to carry

out searches that involve examining the outer and inner parts of the body

or the taking of tests. The Board staff can only examine clothes or any

other object the person is wearing, bags, packages and other objects brought

by the detainee to the centre.

Mail sent to the

detainee can sometimes be the object of examination in which case it should

be opened in the presence eof the detainee. If the detainee does not consent

to the package being opened in his or her presence then the object should

be put aside and not opened. An examination of the contents should not

include reading a letter or other written documents. Mail from legal counsel,

lawyers, international organs that have the right to receive complaints

from individuals or from the UNHCR must not be opened.

If it is clear from

the weight or thickness of a letter that it only contains written material

then it should be handed over tot h detainee without any inspection. However

if there is a reasonable suspicion that the letter or package can contain

drugs, alcoholic drinks or dangerous objects then the detainee should

be summoned and the object inspected. A letter must not be opened or scanned

before the detainee gives permission for this. If the staff suspect that

a letter may have passport or other ID document in it they are not allowed

to open that mail. The only way the authorities can use their right to

take care of passports is if the detainee shows it to them.

Personal belongings

that the detainee cannot have in his or her room are stored at the detention

centre unless the property is illegal, in which case it is handed over

to the police. They can have access to these objects on leaving the detention

centre. A list is made of all objects received for storage.

Regular security

inspections are made at the detention centre to make sure that windows,

walls, alarm systems, electricity plugs and the like are in order. However

such inspections cannot involve a routine search of the personal belongings

of the detainees. Bags, bedclothes, cupboards, wardrobes and chests of

drawers cannot be searched unless there are well founded suspicions of

the possession of forbidden objects.

Well these are some

of the formal regulations governing the detention of asylum seekers. You

may wonder who supervises the implementation of these regulations. At

the national level there is internal control through the head office of

the migration Board but in Europe we also have another instance namely

the Committee for the Prevention of Torture under the Council of Europe.

This committee has a mandate to regularly inspect conditions in prisons

and detention centres of the over 40 members of the Council of Europe.

They also have the possibility of making lightning visits in acute situations.

However normally the committee plans its visits well in advance and in

1998 it made an inspection of Sweden. The Committee also met representatives

of NGOs and I was the one who co-ordinated that meeting. The Committee

found the situation in Sweden on the whole more than adequate but did

come with some pointers. I quote:

67. However,

as already indicated (cf. paragraph 33), some allegations were heard of

the use of excessive force and/or unusual means of restraint by prison

service transport (TPT) officers during the expulsion of foreign nationals

from Sweden.

The most serious

allegations of ill-treatment heard by the delegation concerned a foreign

national expelled from Sweden in late December 1997, who subsequently

made a number of detailed written allegations regarding the manner in

which he had been treated by prison officers from the TPT (blows with

a baton, gagging of the mouth with adhesive tape) during an earlier abortive

deportation attempt. Documents obtained by the CPT's delegation from the

TPT Central Office in Gothenburg partially corroborated the account given

by the person concerned.

68. The CPT recognises

that it will often be a difficult task to enforce an expulsion order in

respect of a foreign national who is determined to stay on a State's territory.

Law enforcement officials may on occasion have to use force in order to

effect such a removal. However, the force used should be no more

than is reasonably necessary. It would, in particular, be entirely unacceptable

for persons subject to an expulsion order to be physically assaulted as

a form of persuasion to board a means of transport or as punishment for

not having done so. Further, the Committee must emphasise that to gag

a person is a highly dangerous measure.

69. The delegation's

concerns about the means of restraint which may be used by prison service

transport officers were heightened by the equipment which it found during

impromptu inspections of two separate TPT vehicles at two different locations

- Arlanda Airport and Österåker Prison. Both vans were carrying

pouches which contained chains approximately two metres long, fitted with

a number of padlocks. In each case, members of the TPT crew demonstrated

the manner in which this item could be used to secure a detainee, namely

fastened around the waist, passed down the inside of a trouser leg and

secured tightly around the ankle in order to fix one leg in a partially-flexed

position.

During the talks held at the end of the CPT's visit, the Swedish authorities

indicated that such "body chains" were not an approved means

of restraint (8) and provided an assurance that they would be withdrawn

from service forthwith. run a real risk of being subjected to torture

or ill-treatment.

3. Conditions

of detention

76. The Aliens

Act stipulates that detention for investigation (e.g. at the point of

arrival/entry) may last for up to six hours. Following a formal detention

order, deprivation of liberty can last for up to 48 hours (when such a

measure is required for the purpose of establishing a person's identity),

or for renewable periods of two weeks (if detention is deemed necessary

in order to facilitate the investigation of a person's right to remain

in Sweden; if it is likely that a person will be refused entry or expelled;

in order to ensure that a refusal-of-entry or expulsion order can be enforced).

It should also be noted that a decision to detain may be appealed before

an administrative court.

The detention of young persons under the age of 18 is only allowed in

exceptional cases (e.g. in order to ensure that a refusal-of-entry or

expulsion order can be enforced) and is subject to additional safeguards

(the young person concerned cannot be separated from his/her guardian

as a result of detention unless there are exceptional grounds for so doing).

Moreover, detention of young persons is limited to a period of a maximum

of 72 hours, which can only be renewed once.

77. Persons detained

for investigation at Arlanda

Airport were placed in a spacious waiting room equipped with

a bench, which was quite adequate for its declared use of holding persons

for a few hours. Whenever foreigners were required to remain in custody

for more than a few hours (and always if they were detained overnight)

they were transferred to the Stockholm Region Detention Centre.

78. As already

indicated, the Stockholm Region Detention Centre - a

closed unit situated within the complex of the (open) Carlslund Refugee

Centre at Upplands Väsby - was first visited by a CPT delegation

in May 1991 (cf. CPT/Inf (92) 4, paragraphs 148 to 150). At the time of

the 1998 visit, the centre had a maximum capacity of 40 places and was

holding 26 inmates, the average length of stay being about four weeks.

As had been the case in 1991, material conditions of detention at the

centre were quite satisfactory.

79. The most

significant change at the centre concerned staff; at

the time of the 1998 visit, it was no longer staffed by the police, but

by Immigration Board personnel. The delegation observed that staff appeared

to be attentive to the needs of inmates and were well equipped to perform

their duties vis-à-vis detained foreigners (e.g. as regards knowledge

of languages).

80. Following

The CPT has recognised that it will often be a difficult taskthe 1991

visit, the CPT criticised the level of activities offered to persons detained

at the centre for lengthy periods.

At the time of

the 1998 visit, efforts were being made to provide a better regime for

inmates. In addition to access to an outdoor exercise area, inmates could

use an adequately equipped fitness facility and were offered the possibility

to play table tennis and other games, to borrow books from the in-house

and a public library, and to read newspapers; further -subject to the

availability of staff to provide supervision - they could have access

to the Internet. In addition, they could listen to the radio and watch

a broad selection of both national and foreign television channels. However,

the educational activities on offer were not as well developed, apparently

due to space constraints, and work opportunities for inmates were very

limited.

In this connection,

the delegation was informed that the detention centre was soon to be transferred

to more spacious premises, which would allow the range of activities offered

to inmates to be further developed. The CPT would like to receive

additional information on this subject.

82. Basic health

care for immigration detainees held at the Stockholm Region Detention

Centre was provided by a medical doctor who attended the centre for one

hour per week, and a nurse who was present in the establishment for three

(half) days every week. Outside those periods, assistance could be sought

from the well-staffed health care service at Carlslund Refugee Centre

or from a local emergency service, which provided both somatic and psychiatric

care.

However, only

emergency and ante-natal care was provided free of charge, there was no

systematic medical screening on reception, medical records were kept in

a perfunctory fashion and preventive medicine was not practised at the

centre.

The CPT

considers that the health care services provided to inmates at the Stockholm

Region Detention Centre for foreigners should be developed. In

particular, all inmates should be medically screened on reception and

information should be provided to newly-arrived immigration detainees

inter alia reminding them of basic hygiene measures. Further, appropriate

arrangements should be introduced to ensure that health care is provided

free of charge to all inmates who are not in a position to pay for such

services.

C. The

treatment of foreign nationals under the Aliens Act

98. In

the course of the visit, the CPT's delegation heard no allegations - and

gathered no other evidence - of physical ill-treatment of foreigners on

arrival/apprehension or whilst detained by the police. Further, no such

allegations were heard concerning foreigners being held under the Aliens

Act at the Stockholm Region Detention Centre (Carlslund) or in other detention

centres/prisons in Sweden.

However,

some allegations were heard of the use of excessive force and/or unusual

means of restraint by prison service transport (TPT) officers during the

expulsion of foreign nationals from Sweden. The most serious allegations

of ill-treatment heard by the delegation concerned a foreign national

expelled from Sweden in late December 1997, who subsequently made a number

of detailed written allegations regarding the manner in which he had been

treated by prison officers from the TPT (blows with a baton, gagging of

the mouth with adhesive tape) during an earlier abortive deportation attempt.

Documents obtained by the CPT's delegation from the TPT Central Office

in Gothenburg partially corroborated the account given by the person concerned.

To enforce

an expulsion order in respect of a foreign national who is determined

to stay on a State's territory. Law enforcement officials may on occasion

have to use force in order to effect such a removal. However, the force

used should be no more than is reasonably necessary. It would, in particular,

be entirely unacceptable for persons subject to an expulsion order to

be physically assaulted as a form of persuasion to board a means of transport

or as punishment for not having done so. Further, the Committee has emphasised

that to gag a person is a highly dangerous measure.

101.

Material conditions in the waiting rooms for immigration detainees at

Arlanda Airport and at the Stockholm Region Detention Centre were quite

satisfactory. Moreover, the level of activities offered to persons held

at the Detention Centre for lengthy periods had improved since the CPT's

first visit to the Centre, and the transfer of the establishment to more

spacious premises should allow the range of activities to be further developed.

However,

the CPT has indicated that health care services provided to inmates at

the Stockholm Region Detention Centre should be developed. In particular,

all inmates should be medically screened on reception and information

should be provided to newly-arrived immigration detainees inter alia reminding

them of basic hygiene measures.

The government

wrote in its reply:

1. Torture and

other forms of ill-treatment

68. The CPT has emphasised that no more force than is reasonably necessary

should be used when enforcing an expulsion order. It is entirely unacceptable

for persons who are subject to an expulsion order to be physically assaulted

as a form of persuasion to board a means of transport or as punishment

for not having done so. Further the CPT has emphasised that to gag a person

is a highly dangerous measure.

The Government

totally agrees with the CPT on this issue. The CPT has referred to a case

involving transport from Sweden of a person subject to an expulsion order.

The National Prison and Probation Administration has investigated the

incident. The investigation shows that the deportation was, in part, conducted

in such a way and using such methods as are contrary to accepted practice

in the prison service transport (TPT). However, the incident occurred

at the airport in Zürich, Switzerland and the criticised measures

were taken by the Swiss police. The Head of the transport service assessed

that the Swedish prison officers did not have any real opportunity to

direct the methods that were to be used, since they understood that the

Swiss police took over responsibility for this part of the transport operation

and their actions followed established routine. The National Prison and

Probation Administration has contended that the methods used are contrary

to the view of how detained persons are to be treated as expressed in

Swedish legislation.

69. The CPT has

asked for confirmation that the body chains found in the TPT's vehicles

have been withdrawn from service.

The National

Prison and Probation Administration decided on 11 November 1998 that body

chains may no longer be used. The decision in attached is appendix 5.

2. Conditions

of detention

82. The CPT considers

that the health care services provided to inmates at the Stockholm Region

Detention Centre for foreigners should be developed.

An alien can

be taken into custody if there is uncertainty about his or her identity,

if it is necessary to be able to accomplish an investigation concerning

the alien's right to stay in the country and also in situations of enforcement.

Under the relevant legislation an alien who is taken into custody shall

be entitled to the same medical care as is given to an alien who applies

for asylum. This includes emergency care, care that cannot be deferred,

maternity care, contraceptive guidance, care in connection with abortion

and measures in accordance with legislation on communicable diseases (smittskyddslagstiftning).

For the care given to an alien he or she shall, as in the case with any

other person, pay a certain fee. An asylum-seeker receives support in

the form of a daily allowance, which is also payable if the alien is taken

into custody. An alien who can be assumed to stay in Sweden for at least

one year or more has the same right to medical care as a Swedish citizen.

Medical screening for asylum seekers is provided to examine the need for

emergency care or care that cannot be deferred or measures under legislation

on communicable diseases. As soon as possible after arrival in Sweden,

an alien who applies for asylum is offered an initial individual contact

with the health service, in which the alien's individual status and need

of further examination is determined. The medical screening therefore

varies depending on his or her personal status and country of origin.

If an alien is taken into custody in connection with his/her arrival in

Sweden, the above-mentioned initial contact will take place at the detention

centre. If, on the other hand, the alien taken into custody has already

been in Sweden for some time, medical screening will already have been

carried out. In such cases there is no need for general medical screening.

As regards inmates' costs for health care, the aim is, according to the

allowances system, that the alien should be ensured adequate means.

Tuesday, 8 April

2003

[Questions asked

of Mr Williams by the Inquiry:]

1. Could you clarify

who would make the decision to detain a child for 72 hours - is it the

Migration Board? Does the same body review detention for another 72

hours? What happens after that time - would the child be placed on strict

reporting requirements?

2. You say that

a child cannot be placed into detention without a guardian - does this

mean that both the child and the guardian must meet the requirements

for detention before a child can be detained? What happens if the guardian

must be detained but not the child - are they separated? Or does this

mean that the guardian cannot be detained when he or she has a child?

3. Could you specify

which sections of the Aliens Act provide for the detention of children?

(I don't need copies but would like to cite them). Also which sections

provide for detention of adults?

4. Could you specify

which sections of the Aliens act provide the specific rules on how the

detention centre should be run? Do those rules specifically adopt UNHCR

guidelines or other UN guidelines? If so, which guidelines or rules?

5. The Australian

government has spoken of the Swedish Identity Card system as a way of

tracking where asylum-seekers are at all times. I was wondering whether

children are ever issued those cards? Can you briefly explain their

function? Do you have any views about the effectiveness of that system

in ensuring that children and their families do not disappear into the

Swedish community?

6. I just have

one additional question. Are decisions to detain (adults or children)

appealable in Swedish Courts? If so, what is the name of the court and

which section of the Aliens Act provide that right?

Tuesday, 8 April 2003

Here are the answers

to most of your questions:

1. Could you clarify

who would make the decision to detain a child for 72 hours - is it the

Migration Board?

YES usually. But

even other bodies such as the police, the Aliens Appeals Board and the

government can make the decision. It is the instance or authority that

is responsible for removal that has to make the decision. In normal cases

this is the Migration Board but if the rejected applicants refuse to comply

the police take over the case. The Appeals Board and the government are

involved much less frequently.

Does the same body

review detention for another 72 hours?

YES but after 72

hours exceptional circumstances are required to approve a prolongation

After 72 hours in detention the child and guardian have the right to free

legal counsel who can negotiate with the authorities regarding immediate

suspension of detention.

What happens after

that time - would the child be placed on strict reporting requirements?

The child and guardian

must be released if no removal is carried out within 144 hours. If there

are practical hindrances to removal such as the lack of cooperation of

home country authorities and this is deemed to be ongoing then the child

and guardian may well be released without any further measures. However

if removal can be expedited shortly after the end of the detention period

strict reporting requirements would be used. In practice children are

not detained unless the authorities are sure they can remove the family

without formal difficulties within the time limit for detention.

2. You say that

a child cannot be placed into detention without a guardian - does this

mean that both the child and the guardian must meet the requirements

for detention before a child can be detained?

YES

1What happens if

the guardian must be detained but not the child - are they separated?

IF THE CHILD ONLY HAS ONE GUARDIAN IN SWEDEN THEN NEITHER OF THEM CAN

BE PLACED IN DETENTION. IF BOTH GUARDIANS ARE IN SWEDEN THEN ONE GUARDIAN

CAN BE DETAINED WHILE THE REST OF THE FAMILY IS REQUIRED TO REPORT REGULARLY

TO THE AUTHORITIES.

3. Could you specify

which sections of the Aliens Act provide for the detention of children?

Aliens Act (1989:529)

Chapter 6 section 3 (main reference) and also section 4, section 5 and

section 19

Also which sections

provide for detention of adults.

Chapter 6 sections

2,(main section) and 4, 5, 6,7,8

4. Could you specify

which sections of the Aliens act provide the specific rules on how the

detention centre should be run?

Chapter 6 sections

18-31

Do those rules specifically

adopt UNHCR guidelines or other UN guidelines? UNHCR guidelines published

in Detention of Asylum Seekers in Europe vol 1 no 4 October 1995 Chapter

2 in the UNHCR European Series ISBN 92-1-100 707 -0 and also updates of

these such as following:

UNHCR’s

Guidelines on applicable Criteria and Standards relating to the Detention

of Asylum-Seekers

Introduction

1. The detention of asylum-seekers is in the view of UNHCR inherently

undesirable. This is even more so in the case of vulnerable groups such

as single women, children, unaccompanied minors and those with special

medical or psychological needs. Freedom from arbitrary detention is a

fundamental human right, and the use of detention is, in many instances,

contrary to the norms and principles of international law.

2. Of key significance

to the issue of detention is Article 31 of the 1951 Convention. Article

31 exempts refugees coming directly from a country of persecution from

being punished on account of their illegal entry or presence, provided

they present themselves without delay to the authorities and show good

cause for their illegal entry or presence. The Article also provides that

Contracting States shall not apply to the movements of such refugees restrictions

other than those which are necessary, and that any restrictions

shall only be applied until such time as their status is regularised,

or they obtain admission into another country.

3. Consistent with

this Article, detention should only be resorted to in cases of necessity.

The detention of asylum-seekers who come "directly" in an irregular

manner should, therefore, not be automatic nor should it be unduly prolonged.

This provision applies not only to recognised refugees but also to asylum-seekers

pending determination of their status, as recognition of refugee status

does not make an individual a refugee but declares him to be one. Conclusion

No. 44(XXXVII) of the Executive Committee on the Detention of Refugees

and Asylum-Seekers examines more concretely what is meant by the term

"necessary". This Conclusion also provides

guidelines to States on the use of detention and recommendations as to

certain procedural guarantees to which detainees should be entitled.

4. The expression

"coming directly" in Article 31(1), covers

the situation of a person who enters the country in which asylum is sought

directly from the country of origin, or from another country where his

protection, safety and security could not be assured. It is understood

that this term also covers a person who transits an intermediate country

for a short period of time without having applied for, or received, asylum

there. No strict time limit can be applied to the concept "coming

directly" and each case must be judged on its merits. Similarly,

given the special situation of asylum-seekers, in particular the effects

of trauma, language problems, lack of information, previous experiences

which often result in a suspicion of those in authority, feelings of general

insecurity, and the fact that these and other circumstances may vary enormously

from one asylum-seeker to another, there is no time limit which can be

mechanically applied or associated with the expression, "without

delay". The expression, "good cause",

requires a consideration of the circumstances under which the asylum-seeker

fled. The term, "asylum-seeker", in these guidelines applies

to those whose claims are being considered under an admissibility or pre-screening

procedure as well as well as those who are being considered under refugee

status determination procedures. It also includes those exercising their

right to seek judicial and/or administrative review of their asylum request.

5. Asylum-seekers

are entitled to benefit from the protection afforded by various International

and Regional Human Rights Instruments which set out the basic standards

and norms of treatment. Whereas each State has a right to control those

entering into their territory, these rights must be exercised in accordance

with a prescribed law which is accessible and formulated with sufficient

precision for the regulation of individual conduct. For detention of asylum-seekers

to be lawful and not arbitrary, it must comply not only with the applicable

national law, but with Article 31 of the Convention and international

law. It must be exercised in a non-discriminatory manner and must be subject

to judicial or administrative review to ensure that it continues to be

necessary in the circumstances, with the possibility of release where

no grounds for its continuance exist.

6. Although these

guidelines deal specifically with the detention of asylum-seekers, the

issue of the detention of stateless persons needs to be highlighted. While

the majority of stateless persons are not asylum-seekers, a paragraph

on the detention of stateless persons is included in these guidelines

in recognition of UNHCR’s formal responsibilities for this group

and also because the basic standards and norms of treatment contained

in international human rights instruments applicable to detainees generally

should be applied to both asylum-seekers and stateless persons. The inability

of stateless persons who have left their countries of habitual residence

to return to their countries has been a reason for unduly prolonged or

arbitrary detention of these persons in third countries. Similarly, individuals

whom the State of nationality refuses to accept back on the basis that

nationality was withdrawn or lost while they were out of the country,

or who are not acknowledged as nationals without proof of nationality,

which in the circumstances is difficult to acquire, have also been held

in prolonged or indefinite detention only because the question of where

to send them remains unresolved.

Guideline

1: Scope of the Guidelines

These guidelines

apply to all asylum-seekers who are being considered for, or who are in,

detention or detention like situations. For the purpose of these guidelines,

UNHCR considers detention as: confinement within a narrowly bounded

or restricted location, including prisons, closed camps, detention facilities

or airport transit zones, where freedom of movement is substantially curtailed,

and where the only opportunity to leave this limited area is to leave

the territory. There is a qualitative difference between detention and

other restrictions on freedom of movement.

Persons who are subject

to limitations on domicile and residency are not generally considered

to be in detention.

When considering

whether an asylum-seeker is in detention, the cumulative impact of the

restrictions as well as the degree and intensity of each of them should

also be assessed.

Guideline

2: General Principle

As a general

principle asylum-seekers should not be detained.

According to Article

14 of the Universal Declaration of Human Rights, the right to seek and

enjoy asylum is recognised as a basic human right. In exercising this

right asylum-seekers are often forced to arrive at, or enter a territory

illegally. However, the position of asylum-seekers differs fundamentally

from that of ordinary immigrants in that they may not be in a position

to comply with the legal formalities for entry. This element, as well

as the fact that asylum-seekers have often had traumatic experiences,

should be taken into account in determining any restrictions on freedom

of movement based on illegal entry or presence.

Guideline

3: Exceptional Grounds for Detention

Detention of asylum-seekers

may exceptionally be resorted to for the reasons set out below as long

as this is clearly prescribed by a national law which is in conformity

with general norms and principles of international human rights law. These

are contained in the main human rights instruments.

There should be a

presumption against detention. Where there are monitoring mechanisms which

can be employed as viable alternatives to detention (such as reporting

obligations or guarantor requirements [see Guideline 4]), these should

be applied first unless there is evidence to suggest that such an alternative

will not be effective in the individual case. Detention should therefore

only take place after a full consideration of all possible alternatives,

or when monitoring mechanisms have been demonstrated not to have achieved

their lawful and legitimate purpose.

In assessing whether

detention of asylum-seekers is necessary, account should be taken of whether

it is reasonable to do so and whether it is proportional to the objectives

to be achieved. If judged necessary it should only be imposed in a non

discriminatory manner for a minimal period.

The permissible exceptions

to the general rule that detention should normally be avoided must be

prescribed by law. In conformity with EXCOM Conclusion No. 44 (XXXVII)

the detention of asylum-seekers may only be resorted to, if necessary:

(i) to verify

identity.

This relates to cases

where identity may be undetermined or in dispute.

(ii) to determine

the elements on which the claim for refugee status or asylum is based.

This statement means

that the asylum-seeker may be detained exclusively for the purposes of

a preliminary interview to identify the basis of the asylum claim. This

would involve obtaining essential facts from the asylum-seeker as to why

asylum is being sought and would not extend to a determination of the

merits or otherwise of the claim. This exception to the general principle

cannot be used to justify detention for the entire status determination

procedure, or for an unlimited period of time.

(iii) in

cases where asylum-seekers have destroyed their travel and /or identity

documents or have used fraudulent documents in order to mislead the authorities

of the State in which they intend to claim asylum.

What must be established

is the absence of good faith on the part of the applicant to comply with

the verification of identity process. As regards asylum-seekers using

fraudulent documents or travelling with no documents at all, detention

is only permissible when there is an intention to mislead,

or a refusal to co-operate with the authorities. Asylum-seekers who arrive

without documentation because they are unable to obtain any in their country

of origin should not be detained solely for that reason.

(iv) to protect

national security and public order.

This relates to cases where there is evidence to show that the asylum-seeker

has criminal antecedents and/or affiliations which are likely to pose

a risk to public order or national security should he/she be allowed entry.

Detention of asylum-seekers

which is applied for purposes other than those listed above, for example,

as part of a policy to deter future asylum-seekers, or to dissuade those

who have commenced their claims from pursuing them, is contrary to the

norms of refugee law. It should not be used as a punitive or disciplinary

measure for illegal entry or presence in the country, and should be avoided

for failure to comply with administrative requirements or breach of reception

centre, refugee camp, or other institutional restrictions. Escape from

detention should not lead to the automatic discontinuance of the asylum

procedure, nor to return to the country of origin, having regard to the

principle of non-refoulement.

Guideline

4: Alternatives to Detention

Alternatives to

the detention of an asylum-seeker until status is determined should be

considered. The choice of an alternative would be influenced by an individual

assessment of the personal circumstances of the asylum-seeker concerned

and prevailing local conditions.

Alternatives to detention

which may be considered are as follows:

(i) Monitoring

Requirements.

Reporting

Requirements: Whether an asylum-seeker stays out of detention

may be conditional on compliance with periodic reporting requirements

during the status determination procedures. Release could be on the asylum-seeker’s

own recognisance or, alternatively or additionally, that of a family member,

NGO or Community group who would be expected to ensure that the asylum-seeker

reports to the authorities periodically, complies with status determination

procedures, and appears at hearings and official appointments.

Residency

Requirements: Asylum-seekers would not be detained on condition

they reside at a specific address or within a particular administrative

region until their status has been determined. Asylum-seekers would have

to obtain prior approval to change their address or move out of the administrative

region. However this would not be unreasonably withheld where the main

purpose of the relocation was to facilitate family reunification or closeness

to relatives.

(ii) Provision

of a Guarantor/ Surety. Asylum-seekers would be required to

provide a guarantor who would be responsible for ensuring their attendance

at official appointments and hearings, failure of which would result

in a penalty, most likely the forfeiture of a sum of money, levied against

the guarantor.

(iii) Release

on Bail. This alternative allows for asylum-seekers already

in detention to apply for release on bail, subject to provisions of

recognisance and surety. For this to be genuinely available to asylum-seekers

they must be informed of its availability and the amount set must not

be so high as to be prohibitive.

(iv) Open

Centres. Asylum-seekers may be released on condition that they

reside at specific collective accommodation centres where they would

be allowed to obtain permission to leave and return during stipulated

times.

These alternatives

are not exhaustive. They identify options which provide State authorities

with a degree of control over the whereabouts of asylum-seekers while

allowing asylum-seekers basic freedom of movement.

Guideline

5: Procedural Safeguards.

If detained, asylum-seekers

should be entitled to the following minimum procedural guarantees:

(i) to receive

prompt and full communication of any order of detention, together with

the reasons for the order, and the rights in connection with the order,

in a language and in terms they understand.

(ii) to be informed

of the right to legal counsel. Where possible, they should receive free

legal assistance.

(iii) to have the

decision subjected to an automatic review before a judicial or administrative

body independent of the detaining authorities. This should be followed

by regular periodic reviews of the necessity for the continuance of

detention, which the asylum-seeker or his representative would have

the right to attend.

(iv) either personally

or through a representative, to challenge the necessity of the deprivation

of liberty at the review hearing, and to rebut any findings made. Such

a right should extend to all aspects of the case and not simply the

executive discretion to detain.

(v) to contact

and be contacted by the local UNHCR Office, available national refugee

bodies or other agencies and an advocate. The right to communicate with

these representatives in private, and the means to make such contact

should be made available.

Detention should in no way constitute an obstacle to the asylum-seekers’

possibilities to pursue their asylum application.

Guideline

6: Detention of Persons under the Age of 18 years.

In accordance with

the general principle stated at Guideline 2 and UNHCR’s Guidelines

on Refugee Children, minors who are asylum-seekers should not

be detained.

In this aspect, reference is made to The Convention on the Rights of the

Child, in particular:

Article 2 which requires

that States take all measures appropriate to ensure that children are

protected from all forms of discrimination or punishment on the basis

of the status, activities, expressed opinions, or beliefs of the child’s

parents, legal guardians or family members;

Article 3 which provides

that in any action taken by States Parties concerning children, the best

interests of the child shall be a primary consideration;

Article 9 which grants

children the right not to be separated from their parents against their

will;

Article 22 which

requires that States take appropriate measures to ensure that minors who

are seeking refugee status or who are recognised refugees, whether accompanied

or not, receive appropriate protection and assistance; and

Article 37 by which

State Parties are required to ensure that the detention of minors shall

be used only as a measure of last resort and for the shortest appropriate

period of time.

Unaccompanied minors

should not, as a general rule, be detained. Where possible they should

be released into the care of family members who already have residency

within the asylum country. Otherwise, alternative care arrangements should

be made by the competent child care authorities for unaccompanied minors

to receive adequate accommodation and appropriate supervision. Residential

homes for children or foster care may provide the necessary facilities

to ensure that their proper development (both physical and mental), is

catered for while longer term solutions are being considered.

All appropriate alternatives

to detention should be considered in the case of children accompanying

their parents. Children and their primary caregivers should not be detained

unless this is the only means of maintaining family unity.

If none of the alternatives

can be applied and States do detain children, this should, in accordance

with Article 37 of the Convention on the Rights of the Child, be as a

measure of last resort, and for the shortest period of time in accordance

with the exceptions stated at Guideline 3.

If children who are

asylum-seekers are detained at airports, immigration holding-centres or

prisons, they must not be held under prison-like conditions. All efforts

must be made to have them released from detention and placed in other

accommodation. If this proves impossible, special arrangements must be

made for living quarters which are suitable for children and their families.

During detention

children have the right to an education which should optimally take place

outside the detention premises in order to facilitate the continuance

of their education upon release. Provision should also be made for their

recreation and play, which is essential to a child’s mental development

and to alleviate stress and trauma.

Children who are

detained benefit from the same minimum procedural guarantees (listed at

Guideline 5) as adults. A legal guardian or adviser should be appointed

for unaccompanied minors.

Guideline

7: Detention of Vulnerable Persons

Given the very negative

effects of detention on the psychological well being of those detained,

active consideration of possible alternatives should precede any order

to detain asylum-seekers falling within the following vulnerable categories

listed:

Unaccompanied Elderly

Persons.

Torture or Trauma Victims.

Persons with Mental or Physical Disability.

In the event that

individuals falling within these categories are detained, it is advisable

that this should only be on the certification of a qualified medical practitioner

that detention will not adversely affect their health and well being.

In addition there must be regular follow up and support by a relevant

skilled professional. They must also have access to services, hospitalisation

and medication counselling, etc., should it become necessary.

Guideline

8: Detention of Women

Women asylum-seekers

and adolescent girls, especially those who arrive unaccompanied, are particularly

at risk when compelled to remain in detention centres. As a general rule

the detention of pregnant women in their final months and nursing mothers,

both of whom may have special needs, should be avoided.

Where women asylum-seekers

are detained they should be accommodated separately from male asylum-seekers,

unless these are close family relatives. In order to respect cultural

values and improve the physical protection of women in detention centres

the use of female staff is recommended.

Women asylum-seekers

should receive the same access to legal and other services, without discrimination

as to their gender, and specific services in response to their special

needs. In particular they should have access to gynaecological and obstetrical

services.

Guideline

9: Detention of Stateless Persons.

Everyone has the

right to a nationality and the right not to be arbitrarily deprived of

his or her nationality.

Stateless persons,

those who are not considered to be nationals by any State under the operation

of its law, are entitled to benefit from the same standards of treatment

as those in detention generally. Being stateless and therefore not having

a country to which automatic claim might be made for the issue of a travel

document should not lead to indefinite detention. Statelessness cannot

be a bar to release. The detaining authorities should make every effort

to resolve such cases in a timely manner, including, through practical

steps to identify and confirm the individuals nationality status in order

to determine which State they may be returned to, or through negotiations

with the country of habitual residence to arrange for their re-admission.

In the event of serious

difficulties in this regard, UNHCR’s technical and advisory service

pursuant to its mandated responsibilities for stateless persons may, as

appropriate, be sought.

Guideline

10: Conditions of Detention.

Conditions of detention

for asylum-seekers should be humane with respect for the inherent dignity

of the person. They should be prescribed by law.

Reference is made

to the applicable norms and principles of international law and standards

on the treatment of such persons. Of particular relevance are the 1988

UN Body of Principles for the Protection of all Persons under any form

of Detention or Imprisonment, 1955 UN Standard Minimum Rules for the Treatment

of Prisoners, and the 1990 UN Rules for the Protection of Juveniles Deprived

of their Liberty.

The following points

in particular should be emphasised:

(i) All asylum-seekers

should undergo an initial screening at the outset of detention to identify

trauma or torture victims, for treatment in accordance with Guideline

7.

(ii) There should

be segregation within facilities of men and women, and the segregation

of children from adults except where they are part of a family group.

(iii). Separate

detention facilities should be used to accommodate asylum-seekers. The

use of prisons should be avoided. If separate detention facilities are

not used, asylum-seekers should be accommodated separately from convicted

criminals or prisoners on remand. There should be no co-mingling of

the two groups.

(iv) Asylum-seekers

should have the opportunity to make regular contact and receive visits

from friends, relatives, religious, social and legal counsel. Facilities

should be made available to enable such visits. Where possible such

visits should take place in private unless there are compelling reasons

to warrant the contrary .

(v) Asylum-seekers

should have the opportunity to receive appropriate medical treatment,

and psychological counselling where appropriate.

(vi) Asylum-seekers

should have the opportunity to conduct some form of physical exercise

through daily indoor and outdoor recreational activities

(vii) Asylum-seekers

should have the possibility to continue further education or vocational

training.

(viii) Asylum-seekers

should have the opportunity to exercise their religion in practice,

worship and observance and to receive a diet in keeping with their religion.

(ix) Asylum-seekers

should have the opportunity to have access to basic necessities, i.e.,

beds, shower facilities, basic toiletries, etc.

(x) Asylum-seekers

should have access to a complaints mechanism (grievance procedures),

where complaints may be submitted either directly or confidentially

to the detaining authority. Procedures for lodging complaints, including

time limits and appeal procedures, should be displayed and made available

to detainees in different languages.

Conclusion.

The increasing use

of detention as a restriction on the freedom of movement of asylum-seekers

on the grounds of their illegal entry is a matter of major concern to

UNHCR, NGOs, other Agencies as well as Governments. The issue is not a

straight-forward one and it is hoped these guidelines have addressed the

legal standards and norms applicable to the use of detention. Detention

as a mechanism which seeks to address the particular concerns of States

related to illegal entry requires the exercise of great caution in its

use to ensure that it does not serve to undermine the fundamental principles

upon which the regime of international protection is based.

Geneva, 10 February

1999