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Criteria determines when asylum seekers in Turkey can be detained
- The Law on Foreigners and International Protection 2014 establishes detention of asylum seekers as an “exceptional measure”, the need for which must be “evaluated on an individual basis” – it provides four criteria according to which asylum seekers “can be detained”.
Alternative to detention provisions in 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.
Policy mandating the consideration of alternatives before detention
- United Kingdom
General: The power to detain must be retained in the interests of maintaining effective immigration control. However, there is a presumption in favour of temporary admission or release and, wherever possible, alternatives to detention are used (see 55.20 and chapter 57).
According to the UK Border Agency’s (UKBA) UK Border Agency, Enforcement Instructions and Guidance there are three ‘alternatives to detention’ in the UK: temporary admission, release on restrictions, or bail. The distinction between these three options is that temporary admission and release on restrictions may be ordered prior to any detention being imposed, whereas bail is granted only after one has already been detained.
(Editor's note: This chapter was withdrawn on 25 October 2017)
Hong Kong law requiring alternatives to be considered before detention is applied
- Hong Kong SAR
- Under section 37ZK of the Immigration Ordinance, Chapter 15 of the Laws of Hong Kong, a torture claimant may be detained by the Director - however reasonable alternatives will be considered before detention is authorised.
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.
Canada - Screening & assessment guidance for officers to ensure liberty, detention applied in first instance
- 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).
Law providing a mandate to consider alternatives to detention in 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.
Mandate to apply alternatives to detention in the first instance in 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
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).