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  • Restrictive migration policy in Argentina
  • Argentina
  • On January 30, 2017, Argentina’s president Maruicio Macri announced an urgent decree (Decreto de Necesidad y Urgencia 70/2017) that modifies the country’s current immigration law, replacing it with a more restrictive migration policy that represents a concerning step backward in terms of international and regional human rights commitments. This change comes as part of more restrictive migration policy and practice observed generally in Argentina, including increased operations to seek out and arrest irregular migrants, along with the creation of a new immigration detention center in 2016, the first in the country. Among other changes, Decree 70/2017 increases maximum time limits for immigration detention from 30 to 60 days and establishes indefinite detention for anyone who legally challenges a removal order. The decree allows for persons to be detained at the beginning of the immigration, even before a removal order is issued, and no longer considers family reunification as criteria for limiting unnecessary detention. The result is that immigration detention in Argentina is no longer the exception, as required by international human rights law. These new regulations also seriously limit access to justice and due process, allowing for a limited three days to challenge a removal order, and only three days more to appeal an initial decision on this order. Additionally, these measures are only available to those who are able to gain access to legal representation.
  • Law
  • Liberty
  • Establish a presumption of liberty
  • Migrants
  • All
  • Ensuring that detention is only used when necessary in Brazil
  • Brazil
  • In Brazil, the presumption of liberty is reflected in the law by the fact that detention is only permissible as an exceptional measure when necessary in order to execute deportation. (Art. 61 and 73 of the Immigration Law). Persons already in the country: Instead of detaining, the first measure of response to an immigration infraction is to issue the migrant a fine and order him/her to leave the country or regularize their status within a certain period of time. This does not apply to persons seeking asylum or those who have the possibility of regularizing their immigration status through one of the country’s existing amnesty programs. The order to leave the country is noted in the migrant's identity document, or in its absence, is included in a statement issued by authorities (Art. 57 and 127 of the Immigration Law). A person is able to leave Brazil without be required to pay the fine. However, they will not be allowed to re-enter legally without paying. The time limit given applies both to payment of the fine and leaving the country. Those who do not leave the country within the allotted time limit, enter into deportation proceedings. Persons who face deportation may be detained for up to 60 days, if deemed necessary in order to execute removal, with possible extension of up to 120 days. However, actual detention rarely occurs in practice unless the migrant has committed a crime (Art. 61 of the Immigration Law)
  • Law
  • Liberty
  • Only permit detention when alternatives cannot be applied
  • Returnees / Deportees
  • All
  • Vulnerable individuals considered suitable for detention only in very exceptional circumstances in the United Kingdom
  • United Kingdom
  • Published Home Office detention policy sets out a a series of groups of vulnerable individuals who are only considered suitable for detention in very exceptional circumstances. : Where a decision is taken to detain someone falling into one of these categories, they would be detained alongside individuals not considered to be vulnerable. The UK does not have accommodation specifically set aside within immigration removal centres for detainees who might be considered vulnerable. Families with children under 18 being returned are only detained as a last resort where they have failed to cooperate with attempts to encourage them to leave the UK voluntarily. They are held at Cedars Pre-Departure Accommodation for the last few days before their removal from the UK, which is a dedicated facility specifically for families with children . The duration of stay at the PDA is limited to 72 hours prior to the familyâs planned removal date, though there provision for them to remain for up to seven days in exceptional circumstances, subject to Ministerial approval. Families live in their own self-contained apartments at Cedars, with a lower level of security than would be found in an IRC. Cedars is run by the private contractor G4S in conjunction with the children's charity Barnardoâs, which provides welfare support to families there.
  • Policy
  • Liberty
  • Prohibit the detention of vulnerable individuals
  • Migrants
  • Children
  • Legislation guarantees migrant children will not be placed in immigration detention in Mexico
  • Mexico
  • On December 2, 2015, the Mexican government took an important step forward in guaranteeing migrant children’s right to freedom by directly prohibiting immigration detention of children in the official regulations for the National Child Rights Law. Article 111.  At no time will migrant children or adolescents, regardless of whether or not they are traveling with adults, be deprived of their freedom in Immigration Stations or in any other immigration detention center (unofficial translation). The regulations establish national norms for the implementation of the Child Rights Law and represent significant progress in protection policies for refugee and migrant children. The regulations recognize that immigration detention is no place for children. Article 111 provides greater protection for migrant children’s freedom, going further than the current Immigration Law, which states that only children traveling without their parents or guardians should be transferred to the family welfare system (DIF) instead of being placed in immigration detention centers. Article 111 also requires that Mexico adopt and implement mechanisms to prevent children accompanied by their parents or guardians from being detained for immigration purposes. The Child Rights Law and Regulations also create a National Child Protection System with a new Federal Office for the Protection of Children’s Rights. The federal office, in coordination with the National Institute of Migration will be responsible for developing a protocol in order to ensure that immigration processes always put the best interests of the child first (Article 105 of the regulations). Furthermore, the Child Rights Law and Regulations mandates the creation of a database on migrant children, including information on if they were victims or witnesses of crime, as well as on possible international protection needs. Thus, the law and its regulations serve as part of an important legal and informational foundation from which to work toward eradicating immigration detention of children.
  • Policy
  • Liberty
  • Prohibit the detention of vulnerable individuals
  • Asylum seekers
  • Migrants
  • Refugees
  • Children
  • Transit
  • Law to prevent detention vulnerable populations from being detained in Turkey
  • Turkey
  • The Law on Foreigners and International Protection, ratified by the Turkish Parliament on 4 April 2014, does not under any circumstances, allow detention of: • UAM IP applicants (they are to be placed “by the Ministry of Family and Social Policies in suitable accommodation facilities, in the care of their adult relatives, or in the care of a foster family, upon taking into account the opinion of the unaccompanied minor” if they are over 16 they can be placed in reception centres); • identified victims of trafficking (the problem is that they are often not identified); international protection status holders; international protection applicants not covered by Art 65 (four criteria specifying when IP applicants can exceptionally be detained); • stateless individuals after their stateless status is determined and documented; • a number of vulnerable groups are exempt from deportation orders, which means they are also protected from detention: Includes: people who are at risk of torture/ill-treatment if expelled; risk in travel due to health, age, pregnancy; cannot receive treatment in country; identified victims of trafficking; & victims of serious psychological, physical or sexual violence, until their treatment is completed. For such persons, humanitarian residence permit is issued and they may be asked to reside at a certain address and carry out reporting at requested forms and periods.
  • Law
  • Liberty
  • Prohibit the detention of vulnerable individuals
  • Asylum seekers
  • Refugees
  • Stateless
  • Trafficked
  • Survivor of torture or trauma
  • Unaccompanied and Separated Children
  • Transit
  • Law prohibiting the detention of specific vulnerable groups in China
  • China
  • The People’s Republic of China’s (China) Exit and Entry Law, which came into effect on 1 July 2013, aims to limit the use of immigration detention for vulnerable individuals.

    The Exit and Entry Law excludes certain vulnerable migrants from detention including minors under 16 years of age, persons with disabilities, persons with serious illnesses, pregnant women, and those over 70 years of age.

    The Exit and Entry Law also contains provisions allowing refugees and asylum seekers to stay in China after obtaining an identification card from public security authorities.

    Additionally, the July 2012 revisions to the Procedural Provisions for the Handling of Administrative Cases by Public Security Organs also excludes other individuals from detention including: those who voluntarily ask for inspection by entry-exit department, pay fines, and buy tickets to voluntarily return to their home country; those who entered through irregular means and stayed, received no help from family members or embassies; survivors of trafficking; and foreigners married to Chinese nationals, especially those with children born in China.

    Note: section 61 of the Exit-Entry Administrative Law simply prohibits the detention of vulnerable groups for "investigation", but says their "activity scope" may be restricted, i.e. they may not leave the restricted locations without approval of authorities. The period for restricting activity scope is not to exceed 60 days. Unclear if these vulnerable groups can be detained for other reasons other than "investigation"
  • Law
  • Liberty
  • Prohibit the detention of vulnerable individuals
  • Migrants
  • Undocumented or irregular migrants
  • Children
  • Elderly Persons
  • Pregnant and nursing mothers
  • Respecting the right to liberty in Argentina
  • Argentina
  • Immigration detention is limited in law and practice to rare instances during deportation procedures. Deportation and detention are both decisions that can only be authorized by judicial order, with detention used only as a final resort after all other remedies are exhausted. Such an order can only be issued in two cases: (i) for a specific period of time as a precautionary measure before a final immigration decision where a risk of non-compliance with a deportation order is proven; and (ii) for a maximum of 15 days to effect deportation where the judge determines that a removal order is final. Before deportation, a person must be given the opportunity to explore all options to regularise their status, within a set deadline. In practice, migrants who have been committed to prison for criminal offences are the only immigration detainees (Article 70, Immigration Law No. 25.871; Article 70, Regulation 616/2010)
  • Law
  • Liberty
  • Establish a presumption of liberty
  • Migrants
  • All
  • Identifying risks for children as soon as possible in Norway
  • Norway
  • In June 2014, Norway’s Immigration Authority (UDI) introduced a new fast-track procedure for cases of UAMs where there was a perceived risk that the minor could disappear or be in need of urgent assistance both due to security issues (trafficking in human beings, forced marriage or other forms of severe abuse) or due to severe health problems. In the fast-track procedure the registration by the National Police Immigration Service (PU), the initial conversation by the UDI and the carpal and teeth x-rays are all carried out on the same day, or as fast as practically possible. The purpose is to secure enough information at an early stage in order to carry out the age assessment, to make a decision in the asylum case, and to follow up on identified needs.
    The initial conversation with UDI, in addition to mapping the reasons for seeking protection, also investigates whether the UAM is at risk of issues such as trafficking, violence or health issues. If there is concern about such risks or other forms of severe abuse, Child Welfare Services are notified of this concern, and the minor may be referred to special accommodation by Child Welfare Services (see above). The following groups of asylum seeker UAMs are put through the fast-track procedure: those from North-Africa, those who apply for asylum after having been apprehended by the police, those who have resided in Norway for some time already, those who have previously absconded from reception centres, and those who can be at risk of trafficking or other forms of severe abuse (indicator-based approach). The fast-track procedure also aims to better coordinate between the different agencies that work with UAMs who disappear.
  • Practice
  • Liberty
  • Establish a presumption of liberty
  • Migrants
  • Unaccompanied and Separated Children
  • Treating children as children, first and foremost in Ireland
  • Ireland
  • It is official policy in Ireland not to refuse any minor entry to the Irish State. The policy is based on the premise that the best interests of the child must always take precedence regardless of whether or not a child claims asylum. According to the Immigration Act 2003, the provisions for the arrest and detention of persons refused leave to land shall not apply to persons under 18 years of age if the Immigration Officer believes that the person is a minor. The Refugee Act 1996 further states that in cases where it appears that a minor presenting at the border or within the territory is alone, or in the company of an adult with whom the Immigration Officer is not satisfied has a genuine relationship with the child, the Immigration Officer must contact TUSLA (the Child and Family Agency).
    Thereafter, the provisions in the Child Care Act 1991 apply, meaning that TUSLA assumes responsibility for the child. In practice, Immigration Officers exercise caution with regard to the age of UAMs presenting at the border/ within the territory, giving the benefit of the doubt and working closely with the relevant social work teams in order to ensure that UAMs are not refused entry to the Irish State. A decision to refuse leave to land is not solely taken by an individual Immigration Officer but is checked by a supervisor.
  • Law
  • Liberty
  • Establish a presumption of liberty
  • Migrants
  • Children
  • Policy requires are note detained and are placed in alternatives in Malta
  • Malta
  • According to a national policy document of 2005, persons vulnerable by virtue of their age and/or physical conditions are meant to be exempt from detention and are to be accommodated in alternative centres. HOWEVER, the policy provides that children are to be initially detained and only released from detention only once their identification has been determined and they have been medically screened and cleared. There are no time limits for early release on grounds of vulnerability and, in practice, this means that unaccompanied children have been detained for anywhere from a few days to 4-5 months during the age determination process. Due to capacity constraints many children have also been detained for several weeks after they have been formally recognized as minors. Families with minor children are usually released within some days. In a welcome development in March 2014, the age assessment procedure was amended by the Agency for the Welfare of Asylum Seekers (AWAS) with some welcome reforms. These include an effort to minimize the period children spend in detention by introducing a time limit of 10 days to the first stages of the procedure and reducing the number of cases referred for a bone density analysis. Whereas it is too early to draw conclusions, preliminary findings from a pilot test indicate that the new procedure has decreased the time taken for age assessments. In March 2014, the Ministry for Family and Social Solidarity presented a new Child Protection (Out of Home Care) Bill to Parliament which proposes significant reform of Malta’s system of care for children, including unaccompanied migrant children. The draft Bill reportedly “foresees a change in the disembarkation procedure whereby the children are no longer to be placed into systematic detention, but in a determi¬nation centre where an age assessment decision will be taken within 2 weeks.” This would be a very welcome development and could ensure the presumption against detention for unaccompanied children is implemented in practice. However, concerns have been expressed that the Bill is not explicit in the principle of non-detention of children and children may still be detained under its provisions
  • Policy
  • Liberty
  • Prohibit the detention of vulnerable individuals
  • Migrants
  • Children
  • Transit
  • Alternative to detention provisions in Austria
  • Austria
  • Art. 77 para 1 Aliens Police Act stipulates that individuals shall be provided with an alternative to detention if detention grounds (Art. 76) are present and the purpose of detention can also be achieved by their provision. The following forms of alternatives to detention are provided in Art. 77 para 3 APA: 1. Residing at a particular address determined by the authority; 2. Reporting periodically to the police station; 3. Lodging a financial deposit at the authority. • Administrative High Court, 17 October 2013, 2013/21/0041 - individuals shall be provided an alternative to detention if detention grounds are present but the purpose of detention can be achieved by the alternative. However, if the necessity of detention to secure a procedure or measure terminating residence is not present, no alternatives to detention shall be imposed either. According to the handbook of the Aliens Police Act (as of 1 July 2011), the facts that justify the assumption that the purpose of detention cannot be achieved through alternatives include the existence of a criminal conviction or the misuse of a previous alternative to detention with the aim to abscond.
  • Law
  • Liberty
  • Mandate to apply alternatives in the first instance
  • Migrants
  • All
  • Reception options for unaccompanied minors in Estonia
  • Estonia
  • Article 35 of the Act on Granting International Protection to Aliens says that an applicant who is an unaccompanied minor shall be placed in the reception centre or a social welfare institution for the duration of the asylum proceedings, and welfare services appropriate to the age of the applicant shall be guaranteed to him or her. An applicant who is an unaccompanied minor may be placed with an adult relative or a social care family, if the host is appropriate for taking care of a minor.
    In placing an applicant who is an unaccompanied minor in the reception centre or social welfare institution, or with an adult relative or a social care family, the rights and interests of the minor shall be the main consideration. Unaccompanied minor sisters and brothers shall not be separated, if possible. The applicant who is an unaccompanied minor may be placed in the initial reception centre until the necessary procedures are conducted.
  • Law
  • Liberty
  • Prohibit the detention of vulnerable individuals
  • Migrants
  • Children
  • Unaccompanied and Separated Children
  • Transit
  • Immigration Officers Discretion includes consideration of alternatives to detention in New Zealand
  • New Zealand
  • Section 315 New Zealand Immigration Act 2009 - immigration officer and person liable for arrest and detention may in his/her absolute discretion, decide that instead of detention, persons can (a) reside at a specified place: (b) report to a specified place at specified periods or times in a specified manner: (c) provide a guarantor who is responsible for— (i) ensuring the person complies with any requirements agreed under this section; and (ii) reporting any failure by the person to comply with those requirements: (d) if the person is a claimant, attend any required interview with a refugee and protection officer or hearing with the Tribunal: (e) undertake any other action for the purpose of facilitating the person’s deportation or departure from New Zealand.
  • Law
  • Liberty
  • Mandate to apply alternatives in the first instance
  • Migrants
  • All
  • Canada - Screening & assessment guidance for officers to ensure liberty, detention applied in first instance
  • Canada
  • ENF 20 - guidance to officers in exercising their powers of detention under IRPA. 5.2 states "In exercising their discretionary authority to detain, officers need to consider all reasonable alternatives before ordering the detention of an individual. This approach requires officers to exercise sound judgment in cases involving the arrest and detention of individuals, pursuant to IRPA. Sound judgment not only requires individual assessment of the case, but also an assessment of the impact of release on the safety of Canadian society. See also 5.5 (assessment of security risk/human rights violations), 5.6 (danger to the public), 5.7 (flight risk), 5. 8 (identity).
  • Policy
  • Liberty
  • Mandate to apply alternatives in the first instance
  • Migrants
  • All
  • Policy mandating the consideration of alternatives to detention in Canada
  • Canada
  • Citizenship and Immigration Canada, Enforcement Manual 20 (ENF 20)- Officers must be aware that alternatives to detention exist. As an alternative to detention, an officer may impose conditions, require a deposit of money or direct that a person participate in a third party risk management program ( para 5.11). Officers must also consider alternatives to detention and ensure detention is avoided or considered as a last resort for: the elderly, pregnant, sick, handicapped, mentally ill, and with behavioural problems, where safety or security is not an issue - (5.13). Also, in making a decision to detain or release, officers must consider the existence of alternatives to detention (see 5.9), detention is feasible where alternatives to detention are not avaialble to mitigate any risk to public safety or flight risk (5.9).
  • Policy
  • Liberty
  • Only permit detention when alternatives cannot be applied
  • Migrants
  • Women
  • Pregnant and nursing mothers
  • Survivor of torture or trauma
  • Law providing a mandate to consider alternatives to detention in Japan
  • Japan
  • Section 5 Article 54 of the Immigration Control and Refugee Recognition Act (ICRRA) allows for the Provisional Release of detainees, taking into consideration such matters as the circumstances, evidence produced in support of the application, and the character and assets of the foreign national pursuant to the provisions of an Ordinance of the Ministry of Justice, upon the foreign national paying a deposit not exceeding 3 million yen as provided by an Ordinance of the Ministry of Justice, and with such conditions as may be deemed necessary, such as restrictions on the place of residence and area of movement and the obligation to appear upon receiving a summons. Alternatively, a letter of guarantee submitted by a person other than the foreign national detained may be substituted for the deposit. Such a letter of guarantee shall contain the amount of the deposit and a statement that the deposit will be paid at any time.
  • Law
  • Liberty
  • Mandate to apply alternatives in the first instance
  • Migrants
  • All
  • Mandate to apply alternatives to detention in the first instance in Estonia
  • Estonia
  • Article 36 of Estonia’s Act on Granting International Protection to Aliens allows for the detention of asylum seekers if the application of alternatives is “impossible”, in line with the principle of proportionality. Article 29 outlines the alternatives to detention that officials can apply to applicants instead of detention, if required. These include:
    • residing in a determined place of residence;
    • appearing for registration at the Police and Border Guard Board at prescribed intervals;
    • notifying the Police and Border Guard Board of the absence from the place of residence for a period longer than three days; and
    • depositing the travel document issued by a foreign state at the Police and Border Guard Board
  • Law
  • Liberty
  • Mandate to apply alternatives in the first instance
  • Migrants
  • All
  • Transit
  • Hong Kong Law mandates that alternatives to detention are considered for specific vulnerable groups
  • Hong Kong SAR
  • Section 35 - Immigration Ordinance, Chapter 115 of the Laws of Hong Kong. An immigration oficer and police officer may require any person who is either detained or liable to be detained, to enter into a recognizance "in the prescribed form in such amount, with such number of sureties and subject to such conditions as the immigration officer or police officer may reasonably require or impose; and where a person who is so detained enters into such a recognizance he may be released." Conditions of a recognizance may include a condition that the person must— (a) report in person at the time and intervals, and at the office or police station, specified by the immigration officer or police officer; (b) notify an immigration officer or police officer in writing of any change in the person’s residential or correspondence address as soon as practicable after the change; (c) (if the person is a claimant as defined by section 37U(1)) attend interviews scheduled by an immigration officer under section 37ZB(1)(b).
  • Law
  • Liberty
  • Mandate to apply alternatives in the first instance
  • Migrants
  • All