PWH Undergraduate Essay Prize Seeking Refuge in Detention

Author Statement

30.4 million refugees and asylum-seekers, in compliance with international refugee law, are exercising their right to seek asylum in a country other than their country of origin..[1]  Perry World House’s Global Shifts: Urbanization, Migration, and Demography theme takes a close look at the issues triggering both voluntary and involuntary migration as well as the subsequent responses from states, local actors and civil society. Detention of refugees and asylum-seekers under international law should be an exception, not the norm. This paper investigates the treatment of refugees in detention centers in countries hosting the most refugees in their respective regions: Turkey (Middle East), Colombia (Latin America), Uganda (Africa), Germany (Europe), Bangladesh (Asia), and the United States (North America).

Through this analysis, it is evident that many detention centers worldwide deprive refugees of liberty and safety. Perry World House draws on the words of the late Executive Director of the U.N. Population Fund, Babatunde Osotimehin, as he said that policies relating to global shifts must be “people-centered, sensitive, humane, dignified, gender-responsive, and prompt.” In this paper, I will outline key
recommendations that address treatment of refugees in detention centers and the processes leading to detention.

Introduction

The tradition of providing sanctuary to a stranger is laced into the fabric of human history. Approximately 26 million people worldwide are currently seeking refuge outside their country of origin.   As domestic politics and immigration rhetoric swell to reform policies on the admission and detention of persons fleeing persecution, it is obligatory to recognize the human instinct of extending sanctuary to the stranger. This paper will investigate common detention practices in the six countries hosting the most refugees in their respective regions: Turkey (Middle East), Colombia (Latin America), Uganda (Africa), Germany (Europe), Bangladesh (Asia), and the United States (North America). This paper will identify five key recommendations designed to facilitate the flow of refugees, to ameliorate conditions in detention centers worldwide and to promote transparency and proper oversight in these centers. These recommendations are necessary to ensure the humane treatment for persons exercising their right to seek refuge.

Historical Background

World War I and the consequential establishment of the League of Nations consolidated international solidarity while heightening states’ awareness of the responsibility to offer protection to its citizens and citizens other than their own. From 1921 to 1951 several bodies created by the League of Nations, notably the International Refugee Organization (IRO), focused on the humanitarian and legal aspects of mass movements. However, these bodies had limited roles and were each liquidated after a few years of operation.[2] Despite an emphasis on refugee resettlement at the IRO, it quickly became clear that international action and multilateralism would be needed to confront the post-war refugee crisis.

In 1948, Article 14 of the United Nations’ Universal Declaration of Human Rights recognized the right of persons – experiencing persecution or fleeing persecution – to seek asylum in a country other than their country of origin. The 1951 United Nations Convention relating to the Status of Refugees as a post-war instrument presented the definition of a refugee as a person fleeing persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion within Europe before 1 January 1951.[3] The Convention, effective on 22 April 1954, was subjected to only one amendment, which resulted in the formation of the 1967 Protocol relating to the Status of Refugees. The 1967 Protocol expands the 1951 refugee definition by removing the temporal and geographic restrictions.[4] Additionally, according to Article 1 in the 1967 Protocol, any state that ratifies the Protocol is bound by the Refugee Convention, even if a country is not a party to the Convention.[5] For example, though the United States is not a party to the Convention, it has ratified the Protocol. Therefore, the United States is bound to the Convention’s provisions.[6] This article contends that states must comply with the international humanitarian and legal standards of the Convention, such as not punishing refugees for illegal entry into the host country.[7] Article 31 of Refugee Convention states that “the Contracting states shall not impose penalties, on account of their illegal entry or presence, on refugees.”[8] In 2012, the UNHCR recommended that detention be an exception rather than a rule.[9] Taken together, Article 1 and Article 31 are critical when addressing a states’ detention practices. International refugee law invites scrutiny not only on the admission of refugees, but their treatment after entry.

Case Studies

In this paper, the detention processes of the six countries that host the most refugees in their respective regions will be evaluated:

Country	Region	Estimated Number of Refugees Hosted[10]	Estimated Number of Asylum-Seekers Hosted[11]	Estimated Number of Asylum Applications in 2019[12]
Turkey	Middle East	3.6 million	300,000	56,417
Colombia	Latin America	1.8 million	Unknown	10,621
Uganda	Africa	1.4 million	Unknown	33,358
Germany	Europe	1.1 million	300,000	163,857
Bangladesh	Asia	854,800[13]	Unknown	Unknown
United States	North America	300,000[14]	800,000	315,899

Figure 1: Estimated Refugee Statistics in Turkey, Colombia, Uganda, Germany, Bangladesh and the United States as of 2019. Refugees and asylum-seekers both seek protection in another country. Asylum-seekers are persons who are located in a host country and have applied or are in the process of applying for asylum.

Turkey has served as a gatekeeper for refugees, asylum-seekers and international migrants largely due to its proximity to Europe and the Near East specifically Syria – the number 1 source country with 6.6 million refugees as of 2020 given the Syrian civil war beginning in 2011. Some estimates put Turkey’s spending at $6.5 billion to facilitate refugee facilities as of 2015.[15] The 2016 EU-Turkey refugee deal, where the EU promised Turkey €3 billion and up to €6 billion under the Facility for Refugees in Turkey, was a statement of cooperation to help manage the influx of refugees.[16] Turkey’s detention capacity was doubled after the establishment of six “removal centers” originally intended as reception centers for asylum-seekers and previously referred to as “Foreigners’ Guesthouses.”[17] As of 2019, 24 removal centers and various ad hoc border posts, police stations, gendarmerie posts, juvenile detention facilities, transit zone “detention rooms” and fixed military bases are used to detain asylum-seekers in Turkey.[18]

The number of asylum-seekers detained in the United States has increased significantly overtime largely due to the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which expanded the number of asylum-seekers subject to mandatory detention while establishing an expedited removal process requiring that asylum-seekers without bond be detained pending their case resolution. Congress from 2009 to 2017 in the Department of Homeland Security Appropriations Act required that detention centers maintain no less than 34,000 beds at any given time.[19] The bed quota was removed, but local quotas such as encouraging ICE to fill a minimum number of beds are still in effect. As of 2019, there are over 200 detention centers in the United States.[20]

Colombia has hosted over 1.8 million refugees and has served as a transit location for refugees seeking asylum in the United States, South America, and Central America given its location at the juncture between the latter two regions. The first migration-related detention center opened in Colombia in 2013. As of 2018, 11 other facilities are in operation.[21]

Germany has received the highest number of refugees out of all the European Union members and migration has become a salient political issue in Germany. Prisons were previously used for the purpose of immigration detention until the EU’s Court of Justice ruling in Bero & Bouzalmate, which promoted the establishment of detention facilities.[22] As of 2018, there are 11 operational detention facilities in Germany, many of which are in isolated locations.[23] As of 2019, Germany required asylum-seekers to pay for their detention should they wish to re-enter the country at a later point.[24] Unlike other EU member states, there was no moratorium on detention orders in response to the COVID-19 pandemic.

Uganda hosts over 1.4 million refugees, which accounts for 3.6% of the country’s total population.[25] Bangladesh hosts around 850,000 refugees, many of which are Rohingya fleeing persecution from Myanmar. The total number of detention centers in these two countries is unknown.

Conditions of Detention Facilities

Within these six countries, the conditions of the detention centers have been criticized for overcrowding, lack of access to medical care, lack of legal counsel, lack of privacy, family separation, sexual assault, and substandard hygienic conditions.[26] The Global Detention Project has reported detention centers with no natural light, detention of over 400 males in a single room, and bathrooms with no curtains, broken sinks and broken toilets. There are reports that asylum-seekers are being forced to sign “voluntary return documents” to their country of origin in detention centers. A 26-year old Syrian woman, a 23-year old Syrian man and his child were forced to give their fingerprints on documents consenting to their return to Syria despite their resistance.[27] Amnesty International interviewed a lawyer in 2019 who said deceptive tactics used to obtain signatures from Syrian asylum-seekers upon entry of the detention center were a standard practice to force asylum-seekers back to Syria.[28] Coercive methods and any abuse for the purpose of pressuring voluntary return are a direct violation of the principle of non-refoulement under international human rights law, which guarantees a person's right to not be returned to a country where they will face persecution.[29]

Recommendations

In accordance with international law, detention prior to expulsion is classified as deprivation of liberty and is thus a violation of Article 9 of the International Covenant on Civil and Political Rights.[30] However, states in every region of the world operate various centers detaining refugees and asylum-seekers claiming legitimate grounds for detention, which Article 9, paragraph 1 of the Covenant allows for. Given the vast numbers of detention centers worldwide, the following recommendations are designed to be sustainable solutions to ameliorate the treatment of detainees while reducing the total number of detainees.

1. Development of a Responsibility-Sharing Formula: 73% of the world's refugees are hosted in neighboring countries and 85% are hosted in developing countries.[31] While there are a number of reasons to explain these numbers such as the host country’s proximity to another country with high rates of persecution against its citizens, a responsibility-sharing framework would reduce the refugee influx in a given location and encourage a joint comprehensive response. Former Deputy High Commissioner for Protection at UNHCR, Volker Turk, proposed a new arrangement – a Global Compact on Refugees – that would encourage proportional contributions by states worldwide. This Compact was affirmed in December of 2018 by the UN General Assembly.[32] Ambassador John Donoghue, permanent representative to the United Nations from Ireland and co-facilitator of the New York Declaration said such an arrangement needs to be “operationalized” in order to be effective and long-lasting.[33] In this Global Compact, annual meetings should be held with parties of the 1951 Convention to discuss state capacity and to negotiate proportional contributions. NGOs, humanitarian and development actors as well as legal counsel can and should be present in annual meetings. Not only will this Compact help states processing large numbers of refugees and asylum-seekers, but it will also ameliorate the conditions of those in detention by addressing overcrowding. The Global Compact should work preventatively by creating an early warning system to alert parties of signs of large movements of refugees in order for states to prepare.[34]
2. Set Maximum Duration of Detention: The average duration of detention varies from case to case and from country to country. Both domestic and international law should specify the absolute maximum duration time for detention of refugees and asylum seekers.[35] As of December 2020, any person subject to deportation or expulsion in Colombia can be held in preventative detention for up to 36 hours.[36] States should follow Colombia as an example and hold refugees for very short periods of time, if any.
3. Routine Detention Facility Inspections: Detention facility inspections are not required by international law. Some refugee hosting countries do not require any inspections. Oftentimes should a country proceed with a routine assessment, a review is conducted by the detention facility or a closely affiliated organization. Additionally, inspections may be performed when it is too late such as after an incident or death of a detainee. Every country, particularly those party to the Convention, should require routine detention facility inspections. Such inspection must be completed by an independent agency in order to ensure transparency, accountability and proper oversight. Key personnel in the detention facility should be required to review the report and have a meeting with the independent agency conducting the inspection.
4. Ensure NGOs, UNHCR, and Legal Representatives Access to Detention Facilities: NGOs, UNHCR, and legal representatives are often restricted access to detention facilities. Historically, these agencies have reported human rights abuses and have advocated on behalf of refugees and asylum-seekers. In order to ensure transparency while affording asylum-seekers representation and access to legal counsel, these organizations should have unrestricted access to detention facilities.
5. Ensure Access to Medical Care: Lack of access to medical care has resulted in short-term and long-term medical problems and in some cases, even death. Substandard hygiene practices in detention centers are either the cause of a detainee’s sickness or can worsen their illness. Congregate settings, lack of testing and quarantines from the COVID-19 pandemic have led to a rise of COVID-19 cases and deaths amongst detainees. Not only should asylum-seekers have proper access to medical care at all times, but there must be a comprehensive effort by the host country’s government to safeguard against COVID-19 and other infections.

Conclusion

According to international law, seeking refuge from persecution in another country is every persons’ right. It is evident that such persons are vulnerable to substandard conditions, and abusive and even fatal treatment while their asylum case is pending. Refugees worldwide are subjected to such treatment in detention centers. Detention of refugees and asylum-seekers under international law should be an exception, not the norm. Protecting refugees demands the attention of all states. Their commitment to multilateralism can safeguard refugees against abuses in detention centers while ensuring their safety and security as they exercise their right to seek asylum.

Endnotes

[1] UNHCR, “Figures at a Glance,” UNHCR, June 18, 2020, accessed April 11, 2021
https://www.unhcr.org/en-us/figures-at-a-glance.html

[2] Karen Musalo, Jennifer Moore, Richard A. Boswell, and Annie Daher. Refugee Law and Policy: a Comparative
and International Approach. Durham, NC: Carolina Academic Press, 2018.

[3] Karen Musalo, Jennifer Moore, Richard A. Boswell, and Annie Daher. Refugee Law and Policy: a Comparative
and International Approach. Durham, NC: Carolina Academic Press, 2018, 38.

[4] “Protocol relating to the Status of Refugees,” Office of the High Commissioner, accessed April 11, 2021
https://www.ohchr.org/EN/ProfessionalInterest/Pages/ProtocolStatusOfRefugees.aspx

[5] “Factsheet: The 1967 Protocol,” Andrew & Renata Kaldor Centre for International Refugee Law, September 2018,
accessed on April 11, 2021 https://www.kaldorcentre.unsw.edu.au/publication/1967-protocol

[6] Ibid.

[7] Ibid.

[8] Jenny Poon, “A Purposive Reading of ‘Non-Penalization’ under Article 31(1) of the Refugee Convention,”
Columbia SIPA Journal of International Affairs,(2018): accessed on April 11, 2021
https://jia.sipa.columbia.edu/online-articles/purposive-reading-%E2%80%98non-penalization%E2%80%99-under-a
rticle-311-refugee-convention#:~:text=This%20provision%20is%20found%20under,life%20or%20freedom%20was
%20threatened%20%E2%80%A6

[9] Ibid.

[10] UNHCR, “Figures at a Glance,” UNHCR, June 18, 2020, accessed April 11, 2021
https://www.unhcr.org/en-us/figures-at-a-glance.html

[11] UNHCR, Global Trends: Forced Displacement in 2019, UNHCR (2019), 9.

[12] UNHCR, “Refugee Data Finder,” UNHCR, accessed on April 11, 2021. https://www.unhcr.org/refugee-statistics/download/?url=gMI7Sy

[13] U.S. News Staff, “10 Countries That Accept the Most Refugees,” U.S. News, September 21, 2020, accessed April
11, 2021. https://www.usnews.com/news/best-countries/slideshows/10-countries-that-accept-the-most-refugees?slide=2

[14] UNHCR, Global Trends: Forced Displacement in 2019, UNHCR (2019), 9.

[15] Krishnadev Calamur, “The Refugee Crisis: The View From Turkey,” The Atlantic (2015): accessed on April 11,
2021, https://www.theatlantic.com/international/archive/2015/10/the-refugee-crisis-the-view-from-turkey/410683/

[16] European Commission, “EU-Turkey Statement: Questions and Answers,” European Commission, March 19,
2016, accessed on April 11, 2021, https://ec.europa.eu/commission/presscorner/detail/en/MEMO_16_963

[17] Global Detention Project, “Country Report Immigration Detention Turkey: A Serial Human Rights Abuser and
Europe’s Refugee Gatekeeper,” Geneva: Switzerland (2019), 9.

[18] Ibid.

[19] Karen Musalo, Jennifer Moore, Richard A. Boswell, and Annie Daher. Refugee Law and Policy: a Comparative
and International Approach. Durham, NC: Carolina Academic Press, 2018.

[20] “Immigration Detention 101,” Detention Watch Network, accessed on April 11, 2021,
https://www.detentionwatchnetwork.org/issues/detention-101#:~:text=In%20Fiscal%20Year%20(FY)%202019,and
%20Customs%20Enforcement%20(ICE)

[21] Global Detention Project, “Country Report Immigration Detention in Colombia: At the Crossroads of the
Americas,” Geneva: Switzerland (2020), 6.

[22] Global Detention Project, “Country Report Immigration Detention in Germany: From Open Arms to Public
Backlash” Geneva: Switzerland (2020), 8.

[23] Ibid.

[24] Ibid.

[25] “Why Uganda has suspended hundreds of refugee aid agencies,” The Conversation, September 13, 2020, accessed
on April 11, 2021, https://theconversation.com/why-uganda-has-suspended-hundreds-of-refugee-aid-agencies-145708#:~:text=Uganda%20is%20also%20one%20of,hosts%20over%201.4%20million%20refugees.&text=Most%20refugees%20are%20from%20South,protection%20policies%20in%20the%20world.

[26] Global Detention Project, “Country Report Immigration Detention Turkey: A Serial Human Rights Abuser and
Europe’s Refugee Gatekeeper,” Geneva: Switzerland (2019), 30.

[27] Ibid.

[28] Amnesty International, “Sent to a War Zone: Turkey’s Illegal Deportation of Syrian Refugees,” London, United
Kingdom (2019), accessed on April 11, 2021 https://app.box.com/s/5l4o0br9jp6allglvwzydl81tyetsvrf.

[29] Karen Musalo, Jennifer Moore, Richard A. Boswell, and Annie Daher. Refugee Law and Policy: a Comparative
and International Approach. Durham, NC: Carolina Academic Press, 2018.

[30] International Organization for Migration (IOM), “International Standards on Immigration Detention and
Non-Custodial Measures,” OHCHR, Geneva, Switzerland (2011), 2.

[31] UNHCR, Global Trends: Forced Displacement in 2019, UNHCR (2019),
https://www.unhcr.org/globaltrends2019/#:~:text=HOSTED%20IN%20NEIGHBOURING%20COUNTRIES,neigh
bouring%20their%20countries%20of%20origin.

[32] Kevin Appleby, “Strengthening the Global Refugee Protection System: Recommendations for the Global
Compact on Refugees,” Journal on Migration and Human Security (2018), https://journals.sagepub.com/doi/10.1177/233150241700500404.

[33] Ibid.

[34] Ibid.

[35] “ECRE Summary Of Key Recommendations On The Detention Of Asylum Seekers,” RefWorld, accessed on April
11, 2021, https://www.refworld.org/pdfid/3c0265aa4.pdf.

[36] Global Detention Project, “Country Report Immigration Detention In Colombia: At The Crossroads Of The
Americas,” Geneva: Switzerland (2020).

References

Appleby, Kevin. “Strengthening the Global Refugee Protection System: Recommendations for the Global Compact on Refugees.” Journal on Migration and Human Security (2018). https://journals.sagepub.com/doi/10.1177/233150241700500404.

Amnesty International. “Sent to a War Zone: Turkey’s Illegal Deportation of Syrian Refugees.” London, United Kingdom (2019). Accessed on April 11, 2021 https://app.box.com/s/5l4o0br9jp6allglvwzydl81tyetsvrf.

Calamur,Krishnadev. “The Refugee Crisis: The View From Turkey.” The Atlantic (2015). Accessed on April 11, 2021. https://www.theatlantic.com/international/archive/2015/10/the-refugee-crisis-the-view-fro m-turkey/410683/.

“ECRE Summary Of Key Recommendations On The Detention Of Asylum Seekers.” RefWorld. Accessed on April 11, 2021. https://www.refworld.org/pdfid/3c0265aa4.pdf.

European Commission. “EU-Turkey Statement: Questions and Answers.” European Commission. March 19, 2016. Accessed on April 11, 2021. https://ec.europa.eu/commission/presscorner/detail/en/MEMO_16_963.

“Factsheet: The 1967 Protocol.” Andrew & Renata Kaldor Centre for International Refugee Law. September 2018. Accessed on April 11, 2021. https://www.kaldorcentre.unsw.edu.au/publication/1967-protocol.

Global Detention Project, “Country Report Immigration Detention In Colombia: At The Crossroads Of The Americas,” Geneva: Switzerland (2020). 

Global Detention Project. “Country Report Immigration Detention in Germany: From Open Arms to Public Backlash.” Geneva: Switzerland (2020). 8. 

Global Detention Project. “Country Report Immigration Detention Turkey: A Serial Human Rights Abuser and Europe’s Refugee Gatekeeper.” Geneva: Switzerland (2019)

“Immigration Detention 101.” Detention Watch Network. Accessed on April 11, 2021. https://www.detentionwatchnetwork.org/issues/detention-101#:~:text=In%20Fiscal%20Y ear%20(FY)%202019,and%20Customs%20Enforcement%20 (ICE).

International Organization for Migration (IOM), “International Standards on Immigration Detention and Non-Custodial Measures,” OHCHR, Geneva, Switzerland (2011), 2.

Poon, Jenny. “A Purposive Reading of ‘Non-Penalization’ under Article 31(1) of the Refugee Convention.” Columbia SIPA Journal of International Affairs (2018). Accessed on April 11, 2021. https://jia.sipa.columbia.edu/online-articles/purposive-reading-%E2%80%98non-penaliza tion%E2%80%99-under-article-311-refugee-convention#:~:text=This%20provision%20i s%20found%20under,life%20or%20freedom%20was%20threatened%20%E2%80%A6.

“Protocol relating to the Status of Refugees.” Office of the High Commissioner. Accessed April 11, 2021. https://www.ohchr.org/EN/ProfessionalInterest/Pages/ProtocolStatusOfRefugees.aspx.

Musalo, Karen, Jennifer Moore, Richard A. Boswell, and Annie Daher. Refugee Law and Policy: a Comparative and International Approach. Durham, NC: Carolina Academic Press, 2018.

UNHCR. “Figures at a Glance.” UNHCR. June 18, 2020. Accessed April 11, 2021 https://www.unhcr.org/en-us/figures-at-a-glance.html.

UNHCR. Global Trends: Forced Displacement in 2019. UNHCR (2019). 9. UNHCR. “Refugee Data Finder.” UNHCR. Accessed on April 11, 2021. https://www.unhcr.org/refugee-statistics/download/?url=gMI7Sy.

U.S. News Staff. “10 Countries That Accept the Most Refugees.” U.S. News, September 21, 2020. Accessed April 11, 2021. https://www.usnews.com/news/best-countries/slideshows/10-countries-that-accept-the-m ost-refugees?slide=2.

“Why Uganda has suspended hundreds of refugee aid agencies,” The Conversation. September 13, 2020. Accessed on April 11, 2021. https://theconversation.com/why-uganda-has-suspended-hundreds-of-refugee-aid-agencie s-145708#:~:text=Uganda%20is%20also%20one%20of,hosts%20over%201.4%20millio n%20refugees.&text=Most%20refugees%20are%20from%20South,protection%20policie s%20in%20the%20world.