By Katie Youtz
Ben is responsible for coordinating government engagement around alternatives to detention at the International Detention Coalition. He is an international human rights lawyer with extensive policy advocacy experience working with irregular migrant populations in the United States and Latin America. He was also a legal advocate for refugees and asylum seekers in East Africa prior to joining the International Detention Coalition (IDC) in 2012. The IDC is a not-for-profit network of more than 300 organizations in 70 countries globally. Coalition members research, advocate, and provide direct services to and on behalf of refugees, asylum-seekers, and migrants.
The Paris Globalist: The IDC is one of the leading organizations advocating for the use of alternatives to immigration detention (ATD) worldwide. You define ATD as “any legislation, policy or practice that allows asylum seekers, refugees and migrants to reside in the community with freedom of movement while their migration status is being resolved or while awaiting deportation or removal from the country.” Can you tell us what this looks like in practice?
Ben Lewis: I think the most important thing to understand about alternatives to detention in an immigration context is that these don’t have to be physical locations.
In fact, the most effective alternatives we’ve found globally are not physical locations but instead effective procedures and approaches to migration governance more generally. These are things like effective screening mechanisms to help states identify people that might pose a risk to safety and security in exceptional cases rather than detaining people en masse or upon arrival.
There are also screening procedures to identify vulnerable categories of individuals such as children, asylum seekers, the elderly, victims of trafficking, stateless persons, or LGBT individuals. For those individuals the state has an enhanced duty of care, so it’s important to screen those people out of the detention environment.
But then once screening is effectively done, there are a number of community-based models that look more like housing and that might be the more traditionally understood notion of an alternative. There are specialized units of housing for victims of trafficking, for example. We’ve seen some great models of psychosocial care provision for victims of torture or trauma and intensive case-management models coupled with housing for unaccompanied minor children.
Then there are a whole host of non-housing placements as well; things like allowing people to live on their own with free movement. That’s the ideal, and when paired with case management, this allows migrants and migration officials to work towards the fair and efficient resolution of cases without impinging on rights. For example, migrants can be provided with temporary visas and identification documents so that they can work and take care of their families themselves. There are really a great variety of options available.
TPG: For someone who is awaiting an immigration decision, say in a community-housing arrangement, what would day-to-day life look like?
Ben Lewis: At the start, when we’re talking about alternatives to detention, we mean non-custodial, community-based settings. If it’s custodial, it’s just detention by another name. That’s important, because some of the practices we’re seeing are being called “alternatives” but in fact they’re custodial. People cannot leave. They’re in a confined space. So in effect they are alternative forms of detention rather than alternatives to detention, and there is a need to be more clear and precise with language.
Ideally, a community-based setting looks much like it does for you and me. People would come and go. They would send their children to school. They would go to work. They would form bonds with their neighbors and other community members while their immigration case is being processed. In fact we’ve found that this is often the most effective way to get people to engage in the migration procedure – by treating them with dignity, care, and respect.
In the United States, for example, people seeking asylum were historically simply given a court date. They provided an address once they were able to find housing. They were provided an identification card and work rights. They were able to move around like any other temporary visa-holder within the United States until the court determined whether or not their asylum status was valid. If they were accepted for asylum, they would be integrated into the local community and placed on a path toward citizenship. If they were rejected for asylum, they would have a certain amount of time to voluntarily depart the country.
In Jordan we’ve seen a fantastic NGO-protection model for victims of trafficking. Some shelters that have traditionally served victims of domestic violence (DV) are increasingly able to receive referrals from the police or the Inter-Ministerial Task Force on Anti-Trafficking to accommodate victims of trafficking, who are oftentimes female migrant domestic workers. While housed at these NGO-run shelters migrant women are able to come and go, live with their families, they’re provided with medical care, psychosocial support, and assistance to return to their country of origin. This is a good example of a protective care model, where people are actually cared for rather than seen as threats to society.
TPG: How prevalent are alternatives to detention compared to “traditional” custodial practices?
Ben Lewis: This is a great question because it’s important to note that the use of immigration detention is not “traditional” at all. This is a relatively new way of approaching migration governance. Ten, fifteen, or twenty years ago, most countries around the world were regularly using practices that we would call “alternative care models,” like the one in the US that I mentioned for asylum-seekers.
It was only in the late 1980s and early 1990s that certain countries, such as the United States or Australia, started using criminal-like detention facilities to hold migrants on a much larger scale. After 9/11 this became an increasingly popular way of managing migration, because migration became conflated with security and terrorism risks.
At the UN-level there have been consistent calls not to conflate security and migration issues. They are very distinct areas. Just because someone is seeking asylum, for example, does not mean that they are a risk to your national security. There also has never been any statistical evidence that the increased use of immigration detention deters irregular migration or makes countries more safe.
So how prevalent is the use of alternatives? We’ve seen good alternative practices in most every country in the world, and these practices have often pre-dated the rise in the use of immigration detention. I think the challenge is getting governments to realize that alternatives can be just as effective, more humane, and more cost-effective in governing migration. Alternatives to detention are already quite prevalent and effective, but there is need for more awareness-raising about their benefits.
TPG: You’ve said these models are more cost-effective than detention. Can you give us some figures?
Ben Lewis: We did a global study in 2011 called “There are Alternatives” in which we looked at compliance rates, cost savings, and the humane benefits of alternatives across 28 countries.
From a compliance perspective, alternatives have maintained very high rates of compliance with appearance at immigration proceedings. In a recent study collecting data from 13 programs, we found compliance rates ranging from 80% to 99.9%. Such high compliance rates would seem to discount the need for putting people into custodial detention settings in the first place.
From a cost savings perspective, on average alternatives cost 80% less than custodial detention models. An average cost in Western “destination countries” like the US or Australia is around $100 a day for an alternative care/support model, where the cost of detention in those countries would be substantially more. In Canada we found 93% cost savings, in Australia 69%, and in a couple of models in the EU we found around 70% cost savings.
TPG: Are there reliable figures for how many people are living in these kinds of alternative care models vs. how many migrants or asylum seekers are in detention facilities?
Ben Lewis: The problem is that we don’t know how many people are being held in custodial detention centers. States are not currently tracking this information very systematically or, if they are, it’s not being shared publicly.
So there’s no way to be sure of the proportion of people being placed in alternative settings. And the number of people being placed in alternative care centers would be very different from the number of people being positively impacted by alternative visa arrangements or screening procedures, for example. So we don’t have any way of knowing with full certainty. However, what we do know is that a number of countries are working to explore, develop and implement alternatives to detention across all regions of the world and that there is increasing global pressure to cease the practice of detaining migrants purely on the basis of irregular entry.
TPG: What are some of the problems with custodial immigration detention centers that alternatives are specifically trying to address?
Ben Lewis: Most of the reporting on the use of immigration detention has highlighted the damaging impacts of custodial detention on migrants around the world. It looks very different in different places, but the most fundamental problem with immigration detention facilities is that they look and feel much like prisons and criminal detention facilities. The cardinal rule of administrative detention is that it should never, in purpose or effect, be a punishment. It’s meant to simply get people through a migration procedure.
But many countries actually use criminal prisons to house migrants. Oftentimes those prisons are overcrowded, there’s a lack of adequate shelter, lights, space, food. This is a clear violation of international legal obligations. But the administrative setting is also a very opaque area of law.
The irony with administrative detention is that there has been no crime committed, per se, as there is in a criminal justice setting. But in the criminal justice setting there are much more robust due process protections. People don’t have the same access to legal assistance or access to the courts in the administrative setting and that has been highly problematic.
But even when the detention conditions are relatively humane, there are certain particularly vulnerable individuals who should never be placed in detention settings. The most obvious is children. There has been increasing clarity on this at the international level. Even in very “nice” conditions or for very short periods of time, children suffer life-long developmental, physical and mental health harms due to the heightened risks of abuse and neglect in immigration detention facilities. They often show heightened rates of post-traumatic stress disorder, self-harm, and suicidal ideation.
What we’ve seen, at least initially, is that this is born from the idea that there’s been no crime committed but they feel a sense of punishment. These kids can’t go outside and play. They’re not able to go to school with their peers, and it doesn’t make sense to them why they’re being locked up in a detention facility.
You could say the same for asylum seekers and torture and trauma survivors. The purpose of administrative detention is merely to get someone to attend an immigration proceeding. It’s difficult to conceive of a situation where you would need to put them in a criminal-like prison setting to get them to attend a court hearing.
TPG: You’ve given some examples of relatively successful models of ATD. Are there any other models in Europe that are having similar success rates?
Ben Lewis: There is no one country that does it perfectly, but we’ve seen positive practices in every country we’ve visited.
Belgium in particular has taken the lead on eliminating the immigration detention of children. They have a housing model that is quite good, including return houses for families that are not custodial so that they can exercise their freedom of movement, however we understand that this practice is currently being reviewed and we’re concerned that Belgium may backtrack on years of positive practice.
I visited a really wonderful center for unaccompanied minors in Sweden. It is an open accommodation center, where the kids have access to the internet and phone services, and can visit with friends. They are also cared for by 24-hour case managers and provided free legal advice, medical care and job support. There’s another wonderful center in Germany where I saw a dedicated team of social workers and psychosocial professionals providing housing and support to children who have migrated across the Sinai and who have often been subjected to horrific abuse, both physical and sexual. Many arrive in the EU having experienced extreme trauma, some suffering from PTSD, and as a result there are high incidences of self-harm and suicidal ideation amongst this group. As children, they are placed in intensive case management and psychosocial care and support settings that are open facilities rather than detention centers.
TPG: How does IDC lobby governments to adopt best practices and to invest more in alternatives rather than in custodial detention?
Ben Lewis: States continue to resort to detention despite clear legal obligations requiring it to be a measure of last resort. So we work closely with the regional and UN bodies to make stronger statements against the increasing use of detention.
At the same time, we have over 300 member organizations in 70 countries, many of whom are engaging in direct lobbying work with national governments. But mostly, states themselves are looking to make a change in the way that they approach migration. They understand that the use of immigration detention is incredibly expensive and inhumane and subjects them to criticism from NGOs and the UN system. So they are seeking to implement alternatives that our research shows have incredibly high compliance rates, are much cheaper than custodial detention, and uphold the human rights of migrants.
TPG: How does ATD help with integration of migrants into the host community?
Ben Lewis: When people have liberty and free movement and can access health, social services, and education they are able to integrate naturally and more seamlessly. Any restrictions posed can actually harm later integration, which is one of the main reasons why alternatives are so effective and why detention is such an ineffective tool at governing migration.
I would also just note that detention itself has been shown to be incredibly damaging to mental and physical health, especially the use of prolonged detention. In many countries in the EU right now people are sometimes held throughout the entire process of their asylum claim. This can last from several months to indefinitely. The impact of that detention is incredibly traumatizing, and this practice is, in fact, creating individuals who are more likely to be a burden on society because they’re not able to take care of and support themselves in the long term. It’s not only that alternatives are better at promoting integration, but also that detention is particularly detrimental and severely hinders integration.
TPG: What recommendations does the IDC have to encourage governments to combat the political discourse that migrants pose a threat to domestic economies and societies?
Ben Lewis: We’ve put together a framework that we call the “Community Assessment and Placement” (CAP) model in which we make a number of recommendations to states. The first recommendation is that states adopt stronger legislative measures to prohibit certain types of immigration detention practices such as the detention of migrant children. It should be clear in in the legal and policy frameworks that these types of practices are not acceptable.
Next, we recommend states implement robust screening and assessment procedures to make sure that detention is only ever used as a last resort and that states are detecting the people with vulnerabilities for whom they have a duty of care.
The third step of the CAP framework is looking at community-based models that could be used even if states have concerns about compliance or security without resorting to custodial detention. These are some of the care and protection models which I mentioned earlier.
Finally, states can look at imposing restrictions or conditions on the movement of individuals until their immigration matter is resolved. But I’ll note that our research finds that overly-restrictive conditions can actually be counter-productive in ensuring that individuals are engaged in the process and comply with adverse immigration decisions.
When these various tools fail, it’s possible that short-term custodial detention may be appropriate, but clearly this would be in very limited cases, which helps states to respect their international legal obligations against arbitrary and unnecessary detention. So using this CAP framework, we help governments to envision a different way of managing migration starting with legal reform, through to initial screening and assessment of needs, and all the way through to imposing limited conditions or restrictions on movement if necessary.
We also strongly encourage governments to resist linking migration and migration policies to security concerns or xenophobic attitudes. There is a disturbing trend of states using detention not because it’s effective but because it seems to be popular with the general public. We cannot be systematically denying people of their rights and dignity simply because it plays well to popular opinion, and this requires strong and brave voices from within governments themselves to combat these trends.Featured Image: Christmas Island Immigration Detention Centre and the Lilac compound. Featured Image Credit: DIPB, Flickr CC. License available here. Featured video: A new initiative by the International Detention Coalition, UNHCR and the Global Campaign to End Child Detention.