ACCESS TO DETAINED MIGRANTS.- A UNHCR DISCUSSION PAPER

 

The Office of the United Nations High Commissioner for Refugees ("UNHCR”) very much appreciates the opportunitv to present our views on access to detained migrants to the Regional Conference on Migration. UNHCR has been mandated by the United Nations General Assembly to ensure international protection to refugees and to assist governments in identifying and implementing a durable solutions on their behalf. Since the Regional Conference on Migration is considering policies and procedures which will affect persons who may be refugees and their ability to seek asylum and to benefit from protection against forced return (the principle of non-refoulement), such discussions relate directly to UNHCR's mandate.

 

Summarv

 

As a general rule, asylum-seekers should not be detained. [1]However, UNHCR recognizes that under certain circumstances a State may detain asylum-seekers, such as to verify identity or to protect national security or public order. Every detained asylum-seeker, however, is entitled to a number of minimum procedural guarantees including "the right to contact the local UNHCR Office, available national refugee or other agencies and a lawyer."[2] Moreover, the means to make such contact should be made available to the asylum-seeker.[3] In addition, detained asylum- seekers should have the possibility regularly to contact and receive visits from friends, relatives and legal counsel.[4]

 

Concerns

 

of refugee status.[5]This principle applies to all children, including those between sixteen and eighteen.[6] In addition, unaccompanied minors should be appointed a legal guardian[7] Such an appointment presumes that a legal guardian will have access to an unaccompanied child.

 

Women also face special problems in making their cases to authorities, particularly when they have experiences which are difficult and painful to describe, such as sexual torture.[8] For women in detention, access to UNHCR, national refugee organizations or other agencies, and a lawyer is, therefore, of particular importance. Pregnant women and nursing mothers should also benefit from special measures which take into account their particular needs while they are in detention." Such women should have access to medical care and receive appropriate medical treatment while in detention.[9]

 

Other vulnerable groups are the sick, handicapped and victims of torture. Such individuals should also have access to medical care and receive appropriate medical treatment.'3 These individuals may also have much more difficulty in articulating their refugee claims and, therefore, access to UNHCR, national refugee organizations or other agencies, and legal representation is necessary to ensure that their claims are adequately examined.

 

Importance of Access

 

Refugee status determination procedures have grown increasinglv complex. especiallv in countries such as the United States and Canada. Without access to UNHCR and/or legal assistance, an asylum-seeker may not possess the guidance needed to pursue a refugee claim. The basic requirements for determining refugee status include: providing the applicant with the necessary guidance as to the procedure to be followed, providing the applicant with the necessary facilities, including the services of a competent interpreter, for submitting his or her claim to the authorities, and permitting the applicant to contact UNHCR.[10]

 

Services Offered by UNHCR

 

Member States of the Regional Conference on Migration are encouraged to contact UNHCR for information on international refugee law and principles, technical assistance, training.

 

 



[1] Guideline 2, UNHCR Guidelines on Detention of Asylum-Seekers, UNHCR/IOM/12/96.  UNHCR/FIM/11/96 (Geneva, 29 January 1996) and Executive Committee Conclusion No.  44.  The UNHCR Executive Committee is a group of representatives from 53 countries, including the United States, that provides policy and guidance to UNHCR in the exercises of its refugee mandate.

[2] Guideline 4, para (iii).

[3] Id.

[4] Id.  At Guideline 6, para (ii)

[5] Id.  at para. 8.6.

[6] Id at para. 8.3.

 

[7] Guideline 5, UNHCR Guidelines on the Protection of Refugee Women (Geneva, July 1991)

[8] Paras.  58 and 60, UNHCR Guidelines on the Protection of Refugee Women (Geneva, July 1991)

[9] Id.

[10] UNHCR Executive Committee Conclusión No.  8 (1977) para (e).