Attorney-General v Refugee Council of New Zealand Inc Ca107/02
[2003] NZCA 335
•16 April 2003
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA107/02 |
| BETWEEN | ATTORNEY-GENERAL |
| Appellant |
| AND | REFUGEE COUNCIL OF NEW ZEALAND INC & THE HUMAN RIGHTS FOUNDATION OF AOTEAROA NEW ZEALAND INCORPORATED |
| First Respondents |
| AND | “D” |
| Second Respondent |
| Hearing: | 5-6 November 2002 |
| Coram: | Blanchard J Tipping J McGrath J Anderson J Glazebrook J |
| Appearances: | H M Aikman, A S Butler and A Puata for Appellant R E Harrison QC and D A Manning for Respondents |
| Judgment: | 16 April 2003 |
| JUDGMENTS OF THE COURT |
Judgments Para No Blanchard, Tipping and Anderson JJ [1] McGrath J [49] Glazebrook J [125]
BLANCHARD, TIPPING AND ANDERSON JJ
(DELIVERED BY TIPPING J)
Introduction
This appeal concerns the way in which the New Zealand Immigration Service (the Service) deals with people who claim refugee status on arrival in New Zealand. The first issue involves s128(5) of the Immigration Act 1987 (the Act). Specifically it is whether the power to detain thereby created applies to refugee status claimants, as that expression is defined in s129B of the Act. That section sets out definitions applicable to Part VI A which was introduced in 1999 to provide a statutory basis for the system by which New Zealand ensures it meets its obligations under the Refugee Convention defined in s2. The second issue concerns the validity in law of an Operational Instruction issued on 19 September 2001 by the General Manager of the Service to immigration officers in the field. The Instruction concerned the “exercise of discretion pursuant to Section 128(5) … to detain persons who have claimed refugee status”. The Instruction was therefore issued on the premise that s128(5) did contain a power to detain refugee status claimants. If that is not correct the validity of the Instruction does not arise.
In the High Court Baragwanath J held, first, that s128(5) did create a power to detain refugee status claimants but, second, that the Instruction was invalid. The Attorney-General, on behalf of the Service, has appealed on the second point. The respondents have cross appealed on the first point.
Power to detain – s128(5) – statutory context
Although it is long and detailed, it is desirable to set out in full the text of s128 as it stood when these proceedings were commenced. There have since been amendments brought about by the Immigration Amendment Act 2002 which came into force on 17 June 2002. At the relevant time s128 provided:
128 Detention and departure of persons refused permits, etc.
(1) This section applies to every person (other than a person to whom section 128B or section 129 of this Act applies) who—
(a) Arrives in New Zealand from another country; and
(b) Is not exempt under this Act from the requirement to hold a permit; and
(c) Either—
(i) Fails to apply in the prescribed manner for a permit; or
(ii) Is refused a permit; or
(iii) Is a stowaway; or
(iv) Is a person whose pre-cleared permit has been revoked by an immigration officer pursuant to section 35F of this Act.
(2) For the purposes of this section, a stowaway shall be deemed to arrive in New Zealand at the time when the craft on which the stowaway is travelling crosses into the territorial limits of New Zealand, and, subject to subsections (3), (13) and (14) of this section, this section shall apply to the stowaway while the stowaway remains within those limits.
(3) This section shall cease to apply to any person (including any stowaway), on the expiration of 72 hours after the time when the craft on which that person was travelling berths, lands, or otherwise arrives in New Zealand, unless that person is sooner detained under this section.
(4) Any person to whom this section applies shall be deemed for the purposes of this Act to be in New Zealand unlawfully, but, for so long as this section applies to that person, that person shall not be liable to be dealt with under any of the provisions of Part 2 of this Act.
(5) Subject to subsection (7) of this section, any person to whom this section applies may be detained by any member of the Police and placed in custody pending that person's departure from New Zealand on the first available craft.
(6) Every person who is placed in custody under subsection (5) of this section and is to be detained overnight shall be detained,—
(a) In the case of an unmarried person who is under 17 years of age, in—
(i) Any residence (within the meaning of section 2 of the Children and Young Persons Act 1974) or other premises under the control of, or approved by, the chief executive of the department for the time being responsible for the administration of the Children, Young Persons, and Their Families Act 1989; or
(ii) Any other premises agreed to by the parent or guardian of that person and an immigration officer; or
(b) In any other case, in—
(i) Any premises approved by the chief executive of the Department of Labour; or
(ii) A Police station.
(7) Where a person to whom this section applies is to be detained for more than 48 hours after the time of that person's detention by a member of the Police under subsection (5) of this section, an immigration officer or a member of the Police shall apply to the Registrar (or, in the Registrar's absence, the Deputy Registrar) of a District Court for a warrant of commitment in the prescribed form authorising the detention for a period not exceeding 28 days of that person in a penal institution or some other premises approved for the purpose by the Registrar (or Deputy Registrar), and the Registrar (or Deputy Registrar) shall issue such a warrant accordingly.
(8) Every application under subsection (7) of this section shall be made on oath, and shall include a statement of the reasons why the person is a person to whom this section applies.
(9) Every such warrant of commitment shall authorise the superintendent of the prison or the person in charge of the other premises to detain the person named in it until—
(a) Required by a member of the Police to deliver up that person in accordance with subsection (11) of this section; or
(b) The release of the person in accordance with subsection (14)(a); or
(c) Subject to subsections (2)(a) and (12) of section 128A of this Act, the expiry of 28 days from the date of the issue of the warrant
whichever first occurs.
(10) Every person detained in a penal institution pursuant to a warrant of commitment issued under subsection (7) of this section shall be treated for the purposes of the Penal Institutions Act 1954 as if that person were an inmate awaiting trial.
(11) When a craft becomes available to take from New Zealand any person to whom this section applies who is in custody pursuant to a warrant of commitment issued under subsection (7) of this section, and it is practicable in all the circumstances for the person to leave on that craft, the superintendent of the prison or the person in charge of the other premises shall, on being required in writing by a member of the Police to do so, deliver the person into the custody of the member of the Police, who shall escort the person or arrange for the person to be escorted to the seaport or airport and ensure that the person is placed upon the craft and detained there until the craft leaves New Zealand.
(12) If, for any reason, the craft ceases to be available to take the person from New Zealand or is, or is likely to be, delayed in New Zealand for more than 24 hours, or if for any other reason the person is unable to leave New Zealand at the expected time, the person shall be returned to the custody from which the person was taken, and for that purpose the warrant of commitment shall be deemed still to be of full force and effect.
(13) Where it becomes apparent to an immigration officer that a person detained in custody under a warrant of commitment issued under subsection (7) is, or is likely to be, unable to leave New Zealand before the expiry of the period for which detention is authorised by the warrant under subsection (9)(c), the immigration officer may either—
(a) Apply to a District Court Judge for an extension, or further extension, of the warrant; or
(b) Notify in writing the Superintendent of the prison or person in charge of the other premises in which the person is detained that the person should be released.
(13A) An application for extension or further extension of a warrant under subsection (13)(a) must—
(a) Be made on oath; and
(b) Include a statement of the reasons why the extension or further extension is requested.
(13B) On an application for the extension or further extension of a warrant of commitment under subsection (13)(a), the Judge may, if satisfied that the person is still a person to whom this section applies, extend or further extend the warrant—
(a) For a further period not exceeding 7 days; or
(b) For such longer period as the Judge thinks necessary in the circumstances to allow all the persons in the group concerned to be properly dealt with, in any case where the person detained under the warrant is a member of a group of people—
(i) Who arrived in New Zealand on the same ship or aircraft; and
(ii) All or most of whom are persons to whom this section applies.
(14) The Superintendent of the prison or person in charge of the other premises in which a person is detained under a warrant of commitment must release the person from custody—
(a) On receiving written notification from an immigration officer under subsection (13)(b) that the person should be released; or
(b) If not earlier released, on the expiry of the period for which detention is authorised under the warrant (as determined having regard to section 128A(2)(a) and (12), where appropriate, and to any extension or further extension of the warrant granted under subsection (13B)).
(14A) On the release of a person under subsection (14),—
(a) Part 2 applies in respect of the person; and
(b) This section ceases to apply in respect of the person.]
(15) A person who is detained under this section shall not be granted bail but may, where section 128A of this Act applies in relation to the person, be released on conditions in accordance with that section.
Section 128 is in Part VI of the Act which commences with s125 and deals with Arrivals and Departures. Part VI first addresses the responsibilities of those in charge of incoming craft. Those responsibilities, which are set out in s125, need not be detailed. They include a responsibility to ensure all passengers have appropriate documentation to enter New Zealand. Section 126 deals with the responsibilities of the passengers themselves as regards documentation and presenting themselves to an immigration officer on arrival. Sections 126A, 126B and 127 deal with special circumstances which are not of any present relevance.
Then comes s128 itself which, as its heading notes, is concerned with detention and departure from New Zealand of all persons who are refused a permit to enter. Section 128A specifies the procedure if a person detained under s128 brings review proceedings. These include habeas corpus applications. Basically the continued custody of such a person comes under the control of the District Court which has power, as s128(15) forecasts, to release on conditions in specified circumstances. In this respect we agree with the observations which McGrath J has made about the judicial role, in particular in his paragraph [104]. We pass by ss128AA-128AD which were enacted in 2002 and come to s128B which is concerned with the detention of people whose eligibility for a permit is not immediately ascertainable. As aspects of this section are of some present moment, we set out its first four subsections:
(1) This section applies to every person who arrives in New Zealand from another country (not being a person who is exempt under section 11 or section 12 of this Act from the requirement to hold a permit) where—
(a) An immigration officer or any member of the Police has reason to suspect that the person may be a person to whom section 7(1) of this Act applies; or
(b) The person has no appropriate documentation for immigration purposes, or any such documentation held by the person appears to be false,—
and a decision as to whether or not to grant that person a permit or, in the case where the person holds a pre-cleared permit, as to whether or not to revoke that permit, has not been made because the person's status under section 7(1) of this Act cannot be immediately ascertained.
(2) Any person to whom this section applies (including any such person who holds a pre-cleared permit) shall be deemed for the purposes of this Act to be in New Zealand unlawfully, but, for so long as this section applies to that person, that person is not liable to be dealt with under any of the provisions of Part 2 of this Act.
(3) Any person to whom this section applies may be detained by any member of the Police and placed in custody in accordance with this section while a determination is made as to whether or not section 7(1) of this Act applies to that person.
(4) Every such determination shall be made by the Minister acting on the advice of the Commissioner of Police, or of such other adviser as the Minister thinks appropriate in the circumstances of the case.
It is important to note that s128B applies only when a decision whether to grant the person concerned a permit has not been made and furthermore has not been made because the person’s status under s7(1) cannot be immediately ascertained. Thus the section can logically apply only to persons whose s7(1) status comes properly in issue. That will be so when there is some reason (including lack of appropriate documentation under subs 1(b)) to suspect ineligibility for a permit by dint of any of the matters with which s7(1) is concerned. They include previous qualifying offences, terrorist activities and affiliations and other reasons of concern for the security or public order of New Zealand. In practice, refugee status claimants often arrive at a border without appropriate documentation or with documentation which appears to be false. This may be because they have fled without papers, or are travelling on forged documents, or have destroyed their travel documents when approaching the border in order to impede their being removed on arrival. Such persons may nevertheless not raise sufficient suspicion in relation to any of the matters covered by s7(1) to warrant detention under s128B, pending the determination which that section envisages. Hence s128B cannot be regarded as designed necessarily or always to cover the position of refugee status claimants. That then is the immediate statutory context in which s128 falls to be construed. We return to its terms.
Section 128 itself
The logical starting point for an examination of the scope of s128(5) is to focus on the provisions of s128(1) which specify to whom the section as a whole applies. It applies to every person who (a) arrives in New Zealand from another country; (b) is not exempt from holding a permit; and (c) either fails to apply for a permit, is refused a permit, is a stowaway, or is a person whose pre-cleared permit has been revoked. There can therefore be no doubt that a refugee status claimant, who has been refused a permit, is a person to whom s128 and thus s128(5) is intended to apply. It must follow that, unless it can be discerned with clarity that Parliament intended refugee status claimants nevertheless to be excluded from the reach of s128(5), either generally or for specific purposes, the power to detain referred to therein applies to them. For ease of reference we set out s128(5) again:
(5) Subject to subsection (7) of this section, any person to whom this section applies may be detained by any member of the Police and placed in custody pending that person's departure from New Zealand on the first available craft.
Because a refugee status claimant who has been refused a permit is undoubtedly a person to whom s128 applies, the power of detention contained in subs (5) must apply to such a person unless, as Mr Harrison QC submitted, the words “and placed in custody pending that person’s departure from New Zealand on the first available craft”, by clear and necessary implication, restrict the generality of the first part of subs (5) so as not to include refugee status claimants within the subsection.
Mr Harrison’s argument was that as s129X prevents the removal from New Zealand of refugee status claimants (save in terms of the Refugee Convention), unless and until their claim for refugee status is declined, it must follow that the “immediate turnaround” contemplated by the concept of departure “on the first available craft” prevents s128(5) from applying to refugee status claimants despite its apparently general terms. It is not immediately easy to reconcile the purpose of s129X with the apparent purpose of s128(5). The purpose of the latter, at least on the face of the subsection, is to give a power to detain pending removal from New Zealand as soon as an available craft can be found. When s129X was enacted in 1999, with the introduction of Part VI A, Parliament must have been aware that generally refugee status claimants could not thereafter be removed from New Zealand unless and until their claim was declined. No amendment was, however, made to the reach of s128 and to the corresponding applicability of s128(5) to refugee status claimants. The question is whether s129X has the effect of amending, pro tanto, s128(5) by excepting refugee status claimants from its terms, or rather whether s128(5) was intended thereafter to be interpreted by construing the expression “first available craft”, in the case of refugee status claimants, so as to reflect the dictates of s129X. We are left in no real doubt that the latter must be the correct approach.
It is highly unlikely that Parliament intended to remove altogether the power to detain refugee status claimants under s128(5). No refugee status claimant refused a permit could then be detained for any period pending the determination of their claim. All such claimants would have to be allowed to enter New Zealand unlawfully, which Parliament can hardly have intended. We appreciate that, when detained, persons to whom s128(5) applies are already deemed to be unlawfully in New Zealand (s128(4)). But that gives no support to the contention that, having refused a refugee status claimant a permit, the Service must nevertheless in all circumstances allow that person to enter New Zealand and be at large.
If s128(5) did not apply to refugee status claimants, there would be a gap in the law. Section 128B is not designed to apply to all those whose presence at large in New Zealand would be undesirable while inquiries are made into their circumstances. A refugee status claimant may give no objective reason to suspect in terms of s128B(1)(a); yet to allow such a person to be at large in New Zealand, when their identity, bona fides and antecedents were unknown, might very well be wholly inappropriate.
The inability to remove a refugee status claimant arising from s129X necessarily implies that the expression “first available craft” means the first available craft after their claim has been declined. The purpose of s128(5) detention is to facilitate the removal of the person from New Zealand. In the case of a refugee status claimant refused a permit, that removal is not inevitable; it is dependent on whether the claim succeeds or fails. The prima facie inevitability of removal which s128(5) implies must, in the case of refugee status claimants, be read as contingent removal. Put another way, the clear power to detain a refugee status claimant under s128(5), as a person to whom s128 undoubtedly applies, was not modified or disapplied when Parliament introduced the specific refugee status claimant regime in 1999 through Part VI A, of which s129X is the immediately relevant provision. Parliament must therefore have intended that the purpose of such detention (ie. pending departure on the first available craft) should be interpreted in the case of refugee status claimants in such a way as to accommodate the temporary and, if their claim succeeded, the permanent inability to remove them from New Zealand.
Other relevant aspects of s128 – Parliamentary materials – previous authorities
This approach to the interrelation between s128(5) and s129X receives support when reference is made to other aspects of s128 and to relevant Parliamentary materials. It is also consistent with certain aspects of the amendments to the Act introduced in June 2002. Section 128(7), which applies when s128(5) detention lasts more than 48 hours, allows a warrant of commitment to be issued for up to 28 days with powers of extension in terms of subss (13) and (13B). This aspect must envisage the need in some cases to conduct reasonably extensive inquiries before the “turnaround” contemplated by the expression “first available craft” is implemented. Indeed, in the case of refugee status claimants, the contemplated turnaround must, as noted above, be regarded as contingent. Furthermore, the reference in s128(11) to the practicability of the person leaving on the first available craft need not be confined to physical impracticability. It is perfectly reasonable in this context to say that it is impracticable to put a refugee status claimant on what might physically be the first available craft because of the legal impediment to removal pending the determination of the claim.
Consideration must also be given to subs (13B) of s128, introduced into the Act in 1999. That subsection deals with extensions of warrants of commitment for further periods not exceeding seven days, thus increasing the initial maximum of 28 days. There is an express power of extension for more than seven days in the case of persons who have arrived in a group. That provision immediately makes one think of groups of refugees, albeit other groups are possible. Reference to Hansard makes it quite clear that Parliament had in mind groups of people claiming refugee status. On the third reading of the Bill which became the Immigration Amendment Act 1999, and introduced subs (13B) into s128, the Minister of Immigration, the Hon Tuariki Delamere said on that subject (Hansard, 30 March 1999 at page 15757):
Part 5, which deals with arrivals and departures, is aimed at creating more flexible detention arrangements in the context of border management if we ever have a boat-people situation. Hopefully that will never happen to us here, but it is a possibility and we must be prepared for it. The current 28-day maximum detention period will be amended to allow extensions through the District Court to enable refugee determinations and any subsequent appeals to be finalised.
The link between refugee status claimants and the power of detention under s128(5), which s128(13B) necessarily creates, must be regarded as virtually clinching the point at issue. Parliament cannot have spoken as it did in subs (13B) unless it understood and intended the power of detention in s128(5) to apply to refugee status claimants. Section 128(13B) must logically require the reconciliation of s128(5) with s129X in the manner earlier indicated.
Finally, there is s128AA, introduced by the 2002 Amendment Act. Subsection (2) of that section applies to refugee status claimants who are placed in custody under s128(5) or are the subject of a warrant of commitment issued under s128(7). While a later enactment is not conventionally regarded as available to assist with an earlier interpretation question, it can at least be said in this case that the interpretation of s128(5), which we would favour without reference to s128AA(2), is entirely consistent with the way Parliament saw the matter when that provision was enacted in 2002.
Our view that Parliament must have intended s128(5) to apply and continue to apply to refugee status claimants is consistent with the recent decision of this Court in Attorney-General v E [2000] 3 NZLR 257. Although the precise point was not in issue in that case, the Court proceeded on the premise that s128(5) applied to refugee status claimants. In delivering the judgment of Richardson P, Gault J and themselves, Henry and Keith JJ said at 262 (paragraph [18]) that persons covered by s128 (necessarily refugee status claimants) “may be detained [under section 128(5)] by any member of the police and placed in custody pending their departure on the first available craft”. Thomas J, who dissented on other matters, agreed with that statement, referring as he did, without demur, at 293, to the decision of Anderson J in F v Superintendent of Mt Eden Prison [1999] NZAR 40. In that case the Judge held that s128(5) applied to refugee status claimants and that the words “first available craft” should be interpreted and applied “with regard to circumstantial reality”. He held that in the case of refugee status claimants the words meant the first craft able to be used having regard to the circumstances of the case. The same view of s128(5) is implicit in the decision of this Court in D v Minister of Immigration [1991] 2 NZLR 673 at 675.
The only previous decision which supports the view that s128(5) does not apply to refugee status claimants is that of Chilwell J in Benipal v Ministers of Foreign Affairs and Immigration (High Court, Auckland, A993/83, 16 December 1985). His Honour was there dealing with s14(1A) of the Immigration Act 1964, the predecessor of s128(5). Nothing in the decision of this Court, when Benipal came on appeal (Ministry of Foreign Affairs v Benipal [1988] 2 NZLR 222), gave any support to Chilwell J’s view on this point which, with respect, we consider to have been in error.
For these various reasons we would hold that at all times material to these proceedings, the power to detain conferred by s128(5) applied to refugee status claimants. We therefore agree with the conclusion to which Baragwanath J came on this issue, albeit our process of reasoning has not followed entirely the same path. We do not, with respect, see any advantage in comparing the Judge’s approach with our own. We would dismiss the cross appeal.
The Operational Instruction
We turn now to address the Crown’s appeal against the Judge’s conclusion that the Operational Instruction was unlawful. Here we respectfully differ from the Judge. At the heart of that difference is our view that, when read as a whole, rather than by reference to selected passages, and when read, as it should be for present purposes, without reference to the way it may have been applied in individual cases, the Operational Instruction does not suffer from the vices ascribed to it by the Judge. It is necessary to set out the terms of the Instruction in full:
New Zealand Immigration Service
Te Ratonga Manene
19 September 2001
OPERATIONAL INSTRUCTION: EXERCISE OF DISCRETION PURSUANT TO SECTION 128(5) OF THE IMMIGRATION ACT 1987 TO DETAIN PERSONS WHO HAVE CLAIMED REFUGEE STATUS
Section 128(5) of the Immigration Act 1987 provides a power for Police to detain persons who have arrived in New Zealand from another country and failed to apply for a permit or are refused a permit. The purpose of detention is to effect those persons’ departure from New Zealand on the first available craft.
Where a person has arrived in New Zealand from another country and, upon their arrival, have claimed refugee status under the Refugee Convention, care must be exercised in the invocation of the section 128(5) power. There are a number of reasons for this:
1.Some of those who arrive at the border and present a claim for refugee status will be recognised as refugees. For such persons, who already have a well founded fear of persecution and an entitlement to protection, detention, even for a short period of time, will be traumatic;
2.Section 129X(2) of the Immigration Act requires immigration officers, (which by dint of section 139 of the Act includes the Police exercising powers under section 128(5)), to have regard to the provisions of the Refugee Convention in carrying out their functions. In accordance with Article 31 of the Refugee Convention and also the UNHCR Guidelines on Detention, it is generally that accepted detention of refugees should occur only where necessary;
3.Section 129X(1) provides that no person who is a refugee status claimant (or who has been recognised as a refugee) may be removed or deported from New Zealand unless such removal or deportation is permitted in terms of Articles 32.1 or 33.2 of the Refugee Convention. This means that for claimants who wish to prepare a claim and pursue any rights of appeal, if held in custody, they may be detained for a not inconsiderable period of time.
However, there will be circumstances where the detention of a person who claims refugee status at the border is justified. This is particularly where interests of national security or public order and safety arise. Whether detention is justified will depend upon a close assessment of all of the factors relating to the arrival. These may include the extent to which that person is able to provide accurate and reliable information as to their identity, the apparent strength or weakness of their claim and the extent to which there are identified risks to public health, safety, security and order. An assessment of risk to public safety, security, and order will need to take account of the prevailing security situation, both in New Zealand and globally. In addition, whether or not the person arrived as part of a group of illegal migrants will be an important factor in determining whether detention is, in the circumstances, justified.
Whether detention is justified will also depend upon the type of detention envisaged. The UNHCR Guidelines on Detention recognise a distinction between detention in a prison environment and accommodation at an open centre with some restrictions on freedom of movement.
To assist in deciding whether or not in a particular case detention is justified, and the type of detention justified, officers should be guided by the following:
If one or more of the following factors exist seeking a section 128 (or 128B) Warrant of Commitment for Detention in a Penal Institution may be justified;
1.Where a refugee status claimant is a person to whom section 7(1) of the Act applies or where detention is otherwise required to protect national security or public order;
2.Where there is reason to suspect that a refugee status claimant is a person to whom section 7(1) applies but their section 7(1) status cannot be immediately ascertained. This is especially in the case of a group arrival situation where there may be good reason to suspect some of those arriving are people smugglers;
3.Where necessary to verify the identity of a refugee status claimant where identity is in dispute and particularly in the case where identity may impact on the application of section 7(1) of the Act. Again this is especially relevant in the group arrival situation where there may be reason to suspect persons of people smuggling and the risks in failing to properly ascertain identity are high;
4.Where a refugee status claimant has destroyed or otherwise disposed of their travel and/or identity documents with the intention of misleading NZIS officials as to the details of their travel and/or identity;
5.Where a refugee status claimant has used fraudulent documents in order to mislead NZIS officials (ie. the claim to refugee status follows detection of the fraud by officials or the Police);
6.Where there is a clearly identified risk of a refugee status claimant absconding and that risk cannot be managed by the refugee status claimant being required to reside at the Mangere Accommodation Centre. Again in the group arrival situation officers will need to carefully consider this ground where some of those presenting claims may have a clear incentive to abscond;
7.Where a claim to refugee status is clearly fraudulent or not related to the criteria for the granting of refugee status laid down in the Refugee Convention nor any other criteria justifying the granting of refugee status; or
8.Where a refugee status claimant has already had a claim to refugee status declined in another Convention Country.
If one or more of the following factors exist seeking a section 128 Warrant of Commitment for Residence at the Mangere Accommodation Centre may be justified:
1.Where the identity (including nationality) of a refugee status claimant cannot be ascertained to the satisfaction of the NZIS and they are not to be detained in penal institution nor does there appear particular reasons for allowing them to enter the community unrestricted;
2.Where there is a risk of a refugee status claimant absconding and that risk can be managed by that refugee status claimant being required to reside at the Mangere Accommodation Centre;
3.Where a refugee status claimant has been in conditions for some period of time that are not conducive to good health;
4.Where a refugee status claimant has arrived as part of a group of 10 or more persons and they are not to be detained in a penal institution nor does there appear particular reasons for allowing them to enter the community unrestricted;
5.Where a preliminary assessment of a refugee status claimant’s claim suggests that the merits of the claim are not strong; or
6.Where a refugee status claimant has no valid travel and/or identity document and there may be delay or difficulty in obtaining those documents in the event that their claim to refugee status is declined.
The detention of persons at the border who claim refugee status but are not granted a permit is not limited to the specific circumstances outlined. All cases depend upon an individual assessment of their circumstances.
This operation instruction rescinds previous operational instructions concerning the detention of refugee status claimants pursuant to section 128(5) of the Immigration Act 1987.
“Signed”
Chris Hampton
General Manager
New Zealand Immigration ServiceThe essence of the Judge’s reasoning was that the Operational Instruction was inconsistent with the Refugee Convention and unlawful on that account. He also viewed it as directed to the place where the detention should take place rather than to whether there should be any detention at all. He held it was therefore unlawful as constituting in that respect an improper fetter on the statutory obligation of immigration officers at the border to decide whether to grant a permit. In practical, and indeed in legal terms, officers at the point of entry have only two options; either to grant a permit or to detain – leaving aside for how long that detention should last. The contention is that the minds of immigration officers were diverted by the Operational Instruction to where detention should take place. They were therefore instructed on a basis which led them not to give proper consideration to the prior question whether or not to grant a permit.
We will defer questions of consistency with the Refugee Convention until after we have dealt with the second point. As foreshadowed above, it is important to consider the Operational Instruction as a whole and against the background that immigration officers can properly be regarded as having a reasonable understanding of the task the legislation gives them when assessing refugee status claimants at their point of entry to New Zealand. In considering the suggested unlawfulness of the Operational Instruction, the first thing to note is the reference in its heading to “Exercise of Discretion … to Detain…”. At the very outset the document is framed on the basis that officers at the border have a discretion whether to detain or not. The document then makes it plain, for the reasons stated, that “care must be exercised in the invocation of the section 128(5) power”. This is a clear and obvious reference to the alternative of issuing an appropriate permit. Among the reasons listed for the need to take care is the Refugee Convention requirement that detention should occur only where necessary. Whether detention of a refugee status claimant is necessary at the point of entry must depend, as would be obvious to any addressee of the Instruction, on a variety of circumstances and their combination in the individual case.
We move next to the introductory words in the third paragraph of the Instruction:
However, there will be circumstances where the detention of a person who claims refugee status at the border is justified.
Read in the context of what had been said previously, the words just set out seem to us to be suggesting, if anything, that there should be a presumption against detention, departure from which may be justified in certain circumstances. The Instruction then proceeds quite appropriately to say that whether detention is justified will depend on a close assessment of all the factors relating to the particular arrival. Relevant factors are listed. The Instruction then links the need for detention to the type of detention envisaged.
Next comes a passage on which particular attention was focussed:
To assist in deciding whether or not in a particular case detention is justified, and the type of detention justified, officers should be guided by the following:
That mode of expression cannot possibly, in our view, lead addressees of the Instruction to think that the only issue is where the detention should be. There is express reference to “whether or not in a particular case detention is justified”. The words introducing the type of circumstance which may justify detention in a Penal Institution, are notable for the use of the word “may” rather than “shall” be justified. We do not consider immigration officers are at all likely to have been misled. We are of the same view with regard to the words introducing the factors which “may” justify residence at the Mangere Accommodation Centre. The penultimate paragraph saying that detention “at the border” is not limited to the specific circumstances earlier outlined cannot reasonably be read, in the context of the document as a whole, as confining the attention of officers to where, as opposed to whether, detention should take place.
Having considered both individual paragraphs of the Instruction and, importantly, the tenor of the document as a whole, we are, with respect to the Judge, of the view that it cannot be read as requiring an unlawful approach by immigration officers to their statutory power of deciding whether refugee status claimants should be detained at the border under s128(5). It is important to recognise, both in this respect and generally, that what is in issue is the power to detain at the border. How long, and on what basis, such detention as may initially be determined should last are different issues to which the Instruction is not directed. We are bound to say that we are surprised at the assertion, let alone the conclusion, that there was anything legally wrong with the Operational Instruction.
We turn now to address the relevant provisions of the Refugee Convention, recalling that Article 31 is specifically mentioned in the Operational Instruction. That Article says that Contracting States shall not apply to the movements of refugees restrictions other than those which are necessary. Such restrictions must be applied only until their status is regularised or they obtain admission to another country. We can see nothing in the Operational Instruction which is inconsistent with or which conflicts with this requirement. Indeed the necessity criterion is specifically referred to in the Instruction. Article 33 prohibits return of refugees (refoulement) in circumstances where their life or freedom would be threatened on stated grounds. A refugee is not, however, entitled to the protection of the non-refoulement provision when there are reasonable grounds for regarding that person as a danger to the security of the country of arrival, or a danger to the citizens of that country, in the latter case because of the conviction of the refugee for a “particularly serious crime”. Again we can see no inconsistency or conflict between this Article and the terms of the Operational Instruction.
The relationship of the Instruction to the Convention arises because s129D of the Act provides that in carrying out their functions, refugee status officers and the Refugee Status Appeals Authority “are to act in a manner that is consistent with New Zealand’s obligations under the Refugee Convention”. Section 129E(3) says that no person may be designated or act as a refugee status officer when the person is also currently employed in considering applications for permits or in administering the removal provisions in Part II. It is refugee status officers who, under s129E(1), determine refugee status claims. Therefore officers considering whether to grant permits at the border are not strictly governed by s129D. They must, however, have regard to the Convention in exercising their permit jurisdiction: see s129X(2).
As foreshadowed earlier, it is not appropriate, when considering the lawfulness of the Instruction as such, to be influenced by how immigration officers may have dealt with individual cases. The lawfulness of the Instruction must depend on a proper construction of its terms rather than on inferences as to how it may have been interpreted by individual officers in individual cases. Whether its interpretation or application in a particular case was unlawful will depend on a close consideration of the circumstances of that case against the legal requirements.
We say this because there is no doubt that following the issuing of the Instruction on 19 September 2001, eight days after the Twin Towers disaster in New York, the proportion of refugee status claimants detained at the border, as against those granted permits, dramatically increased. We consider that the Judge read that circumstance back into the Instruction and took the view that the Instruction itself must therefore have unlawfully induced an erroneous approach to the detention discretion. As is inherent in what we have written, we do not consider it appropriate to allow the lawfulness of the Instruction itself to be coloured by its mode of implementation in particular cases. The only proper way to deal with implementation issues is to consider the facts of the individual cases. Those cases should also be judged against the climate of the times. Immigration officers could not ignore a rise in the risk to national security, as must obviously have occurred following the events of 11 September 2001. A general trend following such an event is not therefore a satisfactory basis to decide whether the Service was or was not lawfully implementing its statutory powers under the permit and detention regimes.
Furthermore a representative and global approach is not a sound way of approaching implementation issues. We do not consider the Court should lend its aid to such an approach, the more so in respect of a period following a major adverse change in the international security climate. We do not think the High Court should have proceeded in the global representative way it did. In our judgment the Courts should confine their attention in relation to the actual implementation of the relevant statutory powers to individual cases where the particular facts can receive the necessary close examination. We therefore respectfully disagree with the Judge’s general and representative approach to this aspect of the case, and confine ourselves on the implementation front to the case of the second respondent, D, whose individual case is the only one before us.
D’s case
The issue in D’s case is whether he was lawfully detained. That must be addressed on the basis that the officer involved had a power to detain him and that there was no unlawfulness in the Operational Instruction. The statement of claim does not contain any allegations specific to D’s case. He simply relies on the general allegations made on a representative basis which, for the reasons already given, we regard as unsubstantiated. It is said on his behalf that, as a result of these general complaints, he was falsely imprisoned or was detained in breach of his rights under ss21 and/or 22 of the New Zealand Bill of Rights Act 1990.
We can say immediately that we do not regard any aspect of the general representative allegations as constituting in D’s case any breach of either s21 or s22 of the Bill of Rights. There is no support in those general allegations for the proposition that D’s person was unreasonably seized (s21) or that he was arbitrarily detained (s22). From the tenor of the Judge’s interim judgment of 31 May 2002, it seems that the focus was almost entirely on the general representative allegations rather than on the particular circumstances of D’s case.
D arrived at Auckland Airport aboard an 8.25am flight on 21 October 2001. Ms Hodgins was the immigration officer who dealt with him. On arrival D indicated he wished to claim refugee status. He was granted such status on 20 November 2001, having been detained during the intervening month at the Mangere Accommodation Centre. Ms Hodgins took down D’s particulars on an Arrival Interview Form. He spoke Farsi, so the interview was conducted through an interpreter. He said he had used a false Iranian passport to escape from Iran and had travelled to Thailand. From there he came to New Zealand in stages on the false passport of another country. He said he had been tortured in Iran and was liable to death there as a Christian convert who promoted Christianity.
Ms Hodgins’ preliminary assessment noted that D had no appropriate documentation for immigration or identity purposes. He had used fraudulent documents in order to mislead Service officials. She therefore noted that there might be delay or difficulty in obtaining appropriate documents in the event his refugee status claim was declined. As D had indicated that he had previously been imprisoned or detained, Ms Hodgins gave preliminary attention to whether s7(1) was a basis for refusing entry. Furthermore, D had indicated he had previously been removed or deported from a country, and had previously been or was under investigation for an offence. It appeared, however, that these matters might be related to religious persecution which would put a different complexion on them.
Ms Hodgins’ preliminary assessment was that a permit should be refused. We do not consider there is any basis for concluding that this assessment represented an improper exercise of discretion or was otherwise unlawful. To grant a permit in the circumstances, as they reasonably appeared to Ms Hodgins, would have been little short of foolhardy. The picture which emerged at the border was one of considerable uncertainty and the circumstances of D’s case must have given rise to genuine concerns about his background, his bona fides, and whether he posed a threat to the security of New Zealand, to adopt the language of Article 33.2 of the Convention. We do not consider Ms Hodgins legally erred by not invoking s128B. In our view the preliminary decision to decline a permit at the border and therefore to detain him at the Mangere Accommodation Centre, at least in the interim, was neither unreasonable nor unlawful. Detention at the border was “necessary”, in the circumstances of D’s case, within any reasonable interpretation of Article 31.2.
D next had a three hour interview with a refugee status officer. Nothing emerged which gave Ms Hodgins cause to change her initial assessment. She therefore formally directed that D be detained under s128(5) and a warrant was sought and obtained authorising his detention for no longer than 28 days. Ms Hodgins made a formal note of her assessment. In it she recorded the matters we have already mentioned, adding that D’s identity had not been ascertained to her satisfaction. That is an acceptable basis upon which detention may be regarded as necessary for Article 31 purposes, as is made clear by the United Nations High Commissioner for Refugees Guidelines for the Detention of Refugees: see Guideline 3 referred to by D and the other respondents in the statement of claim. In paragraph 4 of her note, Ms Hodgins showed a clear appreciation that she had to decide whether to detain as well as where. We consider that in her note Ms Hodgins clearly and faithfully articulated the matters to which she was required to have regard before reasonably and lawfully concluding that in all the circumstances a permit at the border was not warranted in this instance. She then considered the whereabouts of the detention and decided in favour of Mangere.
We cannot accept that in these circumstances D’s detention can be described as arbitrary or, in the Judge’s word, undiscriminatory. We consider Ms Hodgins gave careful and appropriate consideration to D’s individual circumstances. The Judge found that there was a “current wholesale policy of detention”. That conclusion derived from the figures concerning the number of detentions after the Operational Instruction was given as opposed to earlier. But the evidence in D’s case shows anything but a rigid policy of detention irrespective of the circumstances. The Operational Instruction cannot be regarded as instructing officers to adopt such a practice. We are satisfied that Ms Hodgins did not approach the matter on a wholesale pre-determined basis of the kind alleged. As is inherent in what we have earlier written, we do not consider it appropriate to adopt the Judge’s wholesale approach as depositive of individual cases, the more so when the evidence in such a case does not justify the conclusion that the impugned approach was taken in that case.
For the reasons we have endeavoured to express, we would hold that the Operational Instruction was not unlawful in any respect. We would also hold that on the evidence accepted by the Judge there was no unlawfulness in the handling of D’s case at the border. We say at the border, not to imply any later unlawfulness, but because the focus of the proceedings appears always to have been so limited.
General observations
Before closing this judgment we think it appropriate to make some further observations on two matters; first, the representative dimension and second, the nature of the judgments below.
As to the first, the Judge purported to allow the first respondents, the Refugee Council and the Human Rights Foundation, to represent all refugee status claimants who had been detained between the date on which the Operational Instruction was issued and the date of hearing. Unusually the application for such a representation order was made by averment in the statement of claim. The Judge also appears initially to have made the representation order sought on an ex parte basis. The justification for the original ex parte approach was not self-evident. It seems to have been that there could not reasonably have been any opposition. But, as earlier indicated, we consider the global and representative approach has caused difficulties in the consideration of the issues and the Service had reason to oppose a representation order, or at least to have clarified the basis on which the proceedings would continue, if such an order was made.
There were two judgments below, leaving aside a third in relation to stay pending appeal. The main judgment delivered on 31 May 2002 after a hearing on 9 and 10 May 2002 was delivered as an interim judgment. As a result it was not easy to determine exactly what it actually decided. No formal orders were made. The Judge said his interim judgment had identified several issues which required further consideration. The interim judgment also reserved all questions of relief. We can understand the concern expressed by the Service as to how they were placed in the meantime. On 27 June 2002 the Judge delivered what is described as a supplementary judgment. He dealt with some matters not addressed in the interim judgment and revisited some matters which he had dealt with in the interim judgment. We have not thought it necessary or appropriate to complicate our own judgment by distinguishing between the two judgments of the Judge.
In his supplementary judgment the Judge did grant relief in the form of a declaration that the Operational Instruction was unlawful. Consequential relief, either generally or in respect of D, was further reserved. And, at this rather late stage, having taken a global and representative approach in his interim judgment, and having revisited the representation issue, the Judge ruled that the individual circumstances of each claim made it impracticable to make a general representation order. He directed that any claimant, who wished to seek any individual relief beyond the declaration he had made, would have to make an individual application. The Judge also recorded himself as satisfied, in accordance with the Service’s argument, that D fell within s7(1)(d)(v) of the Act having, on his own admission, been deported from Korea. Hence he was never entitled to a permit. Indeed he was expressly prohibited, with immaterial exceptions, from obtaining one. The Judge went on, however, to say that this did not prevent D from claiming his treatment under s128(5) was unlawful. We have of course taken a different view of D’s treatment without any reference to the s7(1)(d)(v) point.
We are bound respectfully to suggest that, unless it cannot be avoided or is inherent in any agreement or order for a staged hearing, it is better if all preliminary issues such as representation be determined ahead of trial, and also better if all substantive issues are dealt with in a single composite judgment, even if more than one hearing is necessary to enable all necessary points to be addressed. Although, sensibly, no issue arose on the point in this Court, the only actual order the Judge seems to have made at the time the Crown appealed was his order declaring the Operational Instruction to be unlawful. There was no order concerning any particular individual. The ability to review judicially the Instruction itself, in isolation of any impact which it may have had in an individual case, must be regarded as problematic. The unlawfulness of the Operational Instruction, even if that were the correct view, would not per se inevitably mean that Ms Hodgins’ treatment of D must have been unlawful. This case shows how difficult it is to deal appropriately with issues in the abstract and how important it almost always is to consider issues of law against a concrete set or sets of facts.
Summary
In this judgment we have determined:
[a] that refugee status claimants may be detained under s128(5);
[b] that the Operational Instruction is not inconsistent with the Refugee Convention or otherwise unlawful; and
[c] that D was lawfully detained at the border under s128(5).
It should be said, however, that even allowing for the heightened security situation after 11 September 2001, during the aftermath of which the Operational Instruction was issued, the dramatic increase in the use of the detention power in the three or four month period covered by the statistical material put before the Court, naturally gave cause for concern.
It may be of course that if individual cases were examined that concern would be allayed, as it has been in relation to D. We have already indicated that it would not, in our view, be proper for the Court to reach any conclusion simply on the basis of the statistical materials, particularly when they are drawn from a period immediately following an event such as September 11. But it should be emphasised that this judgment is not to be read as expressing any view on the way in which the s128(5) power and the Operational Instruction have been applied in the case of any individual refugee status claimant other than D.
Formal conclusion
The Court being unanimous as to the result, orders are made:
[a]Allowing the appeal and setting aside the order declaring the Operational Instruction to be unlawful.
[b]Dismissing the cross appeal.
[c]Declaring that there was nothing unlawful in the way D was treated by Ms Hodgins.
[d]Reserving all questions of costs. If they cannot be agreed between the parties, memoranda may be filed.
McGRATH J
Table of Contents Paragraph Number
Introduction.................................................................................. [49]
Background facts.......................................................................... [50]
High Court judgments................................................................. [54]
Legislative history of s128............................................................ [66]
Statutory implementation of the Convention............................ [73]
Attorney-General v E.................................................................... [75]
Submissions on cross appeal........................................................ [81]
Submissions on appeal................................................................. [85]
Decision:........................................................................................
i) Can claimants be detained under s128?............................. [88]
ii) The scope of the discretion to detain claimants.................. [97]
iii) The judicial discretion to release claimants........................ [104]
iv) The validity of the operational instruction........................ [106]
v) The position of D and the represented persons................. [122]
Conclusion..................................................................................... [124]
Introduction
This is an appeal brought by the Crown against judgments of the High Court holding illegal an operational instruction to immigration officers. The instruction concerns the approach to be taken to deciding whether to detain arriving travellers who have sought recognition of refugee status. The issue in the appeal is whether the statutory provisions giving immigration officers power to detain, pending their summary removal from New Zealand, arriving travellers who are refused entry permits apply to those who claim refugee status and, if they do, what constraints there are on those powers in light of the provisions of the Convention Relating to the Status of Refugees 1951 and the New Zealand Bill of Rights Act 1990. The answer to that question will determine whether the operational instruction issued on 17 September 2001 complied with the requirements of the law.
Background facts
The first respondents in the proceeding, who were plaintiffs in the High Court, are the Refugee Council of New Zealand Incorporated and the Human Rights Foundation of Aotearoa New Zealand Incorporated. The former was established to protect the interests of those claiming, or recognised as having, refugee status and to inform the public about those interests. The main object of the latter is to promote human rights, and New Zealand’s compliance with its international and domestic human rights obligations, by various means including advocacy. Both bodies were moved to bring the proceeding by what Professor Bedggood in her affidavit said was their concern that:
…since the terrible events in the United States of 11 September (2001), there has been a significant and legally unjustified shift in approach by the New Zealand Immigration Service towards a practice of wholesale detention of persons arriving in this country who claim refugee status.
The claim was brought by the first respondents as a representative proceeding on behalf of all those detained under the terms of the operational instruction of 17 September 2001. The second plaintiff, D, sued in his own right. He claimed refugee status on his arrival in New Zealand on 21 October 2001. He was detained following refusal of his application for a temporary permit.
The evidence of Mr Kearney, the Immigration Service official in overall charge of entries into New Zealand, was that, between 19 September 2001 and 31 January 2002, 221 persons claimed refugee status, of whom 208 (94%) were detained on arrival in accordance with the operational instruction of 19 September. However, 131 of the 208 claimants detained were a group from those rescued by the Norwegian vessel, MV Tampa, which the government had agreed to receive and consider for refugee status. The evidence of Mr Lockhart, the chief operating officer of the Immigration Service, was that the rate of detention of arriving spontaneous refugee status claimants had varied over time. This was due to factors such as the removal in June 1999 of the statutory limit of 28 days on detention associated with the “turnaround” summary removal regime, the increased security concerns that arose during the period leading up to the APEC heads of government meeting held in Auckland in September 1999, a different government policy towards detention of claimants following the change of government in December 1999, and the decision to receive the Tampa group made in August 2001. Of importance also was the decision to develop the Mangere Accommodation Centre as an alternative to penal institution detention. It became available in September 2001.
I _____________________________ have had the rules set out above read to me and I understand them and agree to abide by them. I understand that a breach of these rules, particularly rule 13 about not leaving the Centre without permission, may result in me being charged with criminal offending by the Police and/or being detained in a prison.
Signed _______________________
(Resident)
I, _________________________ have read this document to the resident and they understand its contents.
Signed ____________________________ Date ______________
(Interpreter or Staff Member)
Mangere Accommodation Centre
Appendix B
RESIDENTS RIGHTS MANGERE ACCOMMODATION CENTRE
Residents have the right to be treated with humanity and with respect for the inherent dignity of their person.
Although residents may be granted leave from the Centre, while at the Centre they are legally detained.
Residents have the right to know the reason for their detention and the basis for it.
Residents have the right to test in court the lawfulness of their detention at the Centre.
Residents have the right to contact a solicitor or counsel (or any responsible adult where the resident is under 17 years of age) and, subject to reasonable practicability, to see and communicate in private with the solicitor or counsel or responsible adult.
Residents have the right to privacy in their affairs. Residents’ rooms will not be searched except by the Police acting pursuant to their powers. Residents will not be searched unless incidental to a lawful physical restraint or if they are searched by the Police acting pursuant to their powers.
Residents have the right to freedom of thought, conscience, religion and belief and the right to express those things. Residents may use available telephones and may write and send letters to this end.
Residents have the right to practice their religion and to enjoy their culture, including the use of their language.
Residents have the right to pursue fully any claim to refugee status lodged in New Zealand.
Residents have the right to complain to the Person in Charge and to an Ombudsman about any matter affecting their treatment or welfare.
These rights are conferred principally by the New Zealand Bill of Rights Act 1990 and the Immigration Act 1987.
I _____________________ have had the rights set out above read to me and I understand them.
Signed ___________________________
(Resident)
I __________________________________ have read this document to the resident and they understand its contents.
Signed ___________________________ Date ____________________
(Interpreter or Staff Member)
Mangere Accommodation Centre
Appendix C
OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES GENEVA
UNHCR REVISED GUIDELINES ON APPLICABLE CRITERIA AND STANDARDS RELATING TO THE DETENTION OF ASYLUM SEEKERS
(February 1999)
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 the 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:
to verify identity.
This relates to those cases where identity may be undetermined or in dispute.
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.
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. Detention should also be avoided for failure to comply with the administrative requirements or other institutional restrictions related residency at reception centres, or refugee camps. Escape from detention should not lead to the automatic discontinuation of the asylum procedure, or 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:
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, and/or that of a family member, NGO or community group who would be expected to ensure 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 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 the provision 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 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:
to receive prompt and full communication of any order of detention, together with the reasons for the order, and their rights in connection with the order, in a language and in terms which they understand;
to be informed of the right to legal counsel. Where possible, they should receive free legal assistance;
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 continuation of detention, which the asylum-seeker or his representative would have the right to attend;
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;
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 not constitute an obstacle to an asylum-seekers’ possibilities to pursue their asylum application. ……
Guideline 10: Conditions of Detention
Conditions of detention for asylum-seekers should be humane with respect shown 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) the initial screening of all asylum-seekers at the outset of detention to identify trauma or torture victims, for treatment in accordance with Guideline 7;
(ii) the segregation within facilities of men and women; children from adults (unless these are relatives );
(iii) the use of separate detention facilities 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) 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) the opportunity to receive appropriate medical treatment, and psychological counselling where appropriate;
(vi) the opportunity to conduct some form of physical exercise through daily indoor and outdoor recreational activities;
(vii) the opportunity to continue further education or vocational training;
(viii) the opportunity to exercise their religion and to receive a diet in keeping with their religion;
(ix) the opportunity to have access to basic necessities i.e. beds, shower facilities, basic toiletries etc;
(x) 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 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.
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