Asylum Seekers

Conditions:

• Asylum seekers who arrive at U.S. airports and borders are held in detention facilities and immigration jails around the country without the opportunity to seek release on bond or parole.

• Asylum seekers are detained in prison-like facilities, often re-creating traumatic environments they have fled. Medical experts have concluded that these conditions create a serious risk of long-term psychological harm.

• Indeed, asylum seekers arriving in the U.S. are often escaping religious, political or ethnic conflicts back in their countries. They may have been detained, surrounded by armed guards that were often violent and female asylum seekers may have been raped while detained. Being placed in U.S. detention could result in a re-traumatization for torture survivors or those who escaped past persecution.

• Very few facilities provide personnel with any training regarding the special needs and concerns of asylum seekers, such as the psychological problems faced by victims of torture.

• Detention often has the effect of infringing on asylum seekers' ability to exercise their right to seek asylum, particularly since asylum seekers in the United States do not have the right to government-funded legal representation, and detention facilities are often located in remote areas where relatively few pro bono attorneys are available and access to documentation to prepare their cases is limited.

Applicable Human Rights Instruments:

• Use of detention to deter asylum seekers is impermissible under International Law (UNHCR's Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers).

• “Everyone has the right to seek and to enjoy in other countries asylum from persecution” (Article 14 UDHR).

• Penalties shouldn’t be imposed to refugees on account of their illegal entry (Article 31-1 of the Refugee Convention).

• The detention of asylum seekers should be the exception -“which are necessary”- and not the rule (Article 31-2 of the Refugee Convention).

• There is a prohibition against returning refugees to any country in which their life or freedom would be threatened on account of their race, religion nationality, membership in a particular social group or political opinion (Article 33 of the Refugee Convention).

• There is a prohibition against expelling, returning or extraditing a person to another State if there are “substantial grounds” for believing that a danger of being subjected to torture exists (Article 3 CAT)

• The detention of asylum-seekers “should normally be avoided” (Conclusion 44b EXCOM).

• Detention is allowed by international standards only:

- if it is necessary, and
- if it is lawful and not arbitrary, and
- if it is for one of the following reasons:

(i) "to verify identity";
(ii) "to determine the elements on which the claim to refugee status or asylum is based";
(iii) "to deal with cases where refugees or asylum-seekers have destroyed their travel or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum";
(iv) "to protect national security or public order".
Moreover, even if an asylum-seeker is detained legitimately, detention should not continue for longer than is necessary (Conclusion 44b EXCOM).

UNHCR's Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers

Universal Declaration of Human Rights (UDHR)

Convention Relating to the Status of Refugees (Refugee Convention)

Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT)

UNHCR EXCOM, "Detention of Refugees and Asylum-Seekers", Conclusion No. 44 (XXXVII), 1986 (Conclusion 44b EXCOM)