The United Nations High Commissioner for Refugees (UNHCR) has issued new guidelines relating to the detention of asylum seekers. An overarching theme of the ten guidelines is that the detention of asylum seekers is an exceptional measure of last resort which can only be applied where it pursues a legitimate purpose and has been determined to be both necessary and proportionate in each individual case. The guidelines emphasise the right to seek asylum as well as the rights of asylum seekers to liberty, security of person and freedom of movement. If detention is indeed necessary as a final resort, the guidelines aim to provide a humane framework for the implementation of detention measures. Under the Migration Act 1958, Australia maintains a system of mandatory immigration detention which is manifestly incompatible with the UNHCR’s Guidelines.
Instead of mandatory detention of all asylum seekers, there are various ways for governments to address irregular migration. The UNHCR Guidelines usefully outline a range of alternatives to immigration detention in addition to the state of international law relating to immigration detention.
A copy of the Guidelines is available at http://www.unhcr.org/505b10ee9.html.
Emily Brott is on secondment to the HRLC from King & Wood Mallesons