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Resources > Global Issues > Covering the UN > The UN Refugee Ag... > October 22, 1998

October 22, 1998

OTR UNHCR Vol. 2 Issue 5
On the Record: Your independent electronic link to the Geneva UNHCR Executive Committee Meeting
Part 1 of 2

October 22, 1998

Special Issue: The Threat to Asylum in the North

The recent meeting of UNHCR's Executive Committee in Geneva was marked by criticism of asylum policy as practiced in western states, particularly Europe, where support for the 1951 Refugee Convention has traditionally been strongest. In this two-part issue, On the Record examines different aspects of the debate.

This is the fifth issue in the current series of On the Record. The sixth and final issue in this series (which will be Repatriation, Reintegration and Reviewing the Results of Excom) will be issued shortly.

Highlights

Part One:

• Refugee Advocates Vow Assault on Fortress Europe
• Trafficking People into the United Kingdom
• The Netherlands – Waiting in the Queue
• Sweden – Fighting Chain Refoulement

Part Two:

• Refugee Advocates Launch Campaign Against the Detention of Asylum Seekers
• Canadians Generous, But Families Being Split
• The United States Uses County Jails for Detention
• Privatizing Deportation from Australia

Refugee Advocates Vow Assault on Fortress Europe

As Europe moves towards a single asylum policy, will it reinforce the ramparts of Fortress Europe or provide a refuge for those fleeing turbulence and persecution? IAIN GUEST sets out some of the issues that divide European governments and their critics.

In a time of war and disaster elsewhere in the world, it is ironic that the battle over asylum is most acute in the heartland of Europe – one of the safest regions of the world and the cradle of the 1951 Refugee Convention.

Refugee advocates feel that European governments are fashioning a unified asylum policy that views refugees as a threat to Europe's prosperity and aims to keep them as far away as possible. This, refugee advocates say, threatens the foundations of the 1951 system of refugee protection.

1998 opened with a major row over the leak of a confidential "action plan" on Iraqi Kurds by the K4 committee of the European Commission, which oversees the coordination of police and security matters. The plan was prepared after 3,000 Kurds unexpectedly arrived in Turkey, raising fears that they would move on to western Europe.

The Action Plan portrayed the Kurds almost exclusively as a security threat, and called for more effective police control and deterrence – including the coordinated finger-printing of asylum seekers. It also called for the creation of "safe areas" within the region and recommended European Union (EU) funding for reception centers inside Turkey.

Six months later in July, in its capacity as President of the European Union, the Austrian government circulated a confidential strategy paper on asylum and immigration. It also emphasized the need to control rather than admit refugees, and even raised questions about the relevance of the 1951 Convention.

The July paper was disowned by 13 of the 14 EU governments. But there is profound concern that they only disavowed the paper after it was leaked, and that it reflects their true thinking. Coupled with the fact that many governments are enacting tough national laws on immigration and asylum, and even reducing the social benefits of asylum-seekers, this seems to point to a regime based on deterrence instead of compassion.

All of this amounts to a profound challenge for UNHCR, which is keen to shift the debate on asylum in Europe back to a firm legal foundation and away from ad hoc solutions. How far can UNHCR go in protesting – and still retain a seat at the governmental discussions?

Issues of Disagreement

European governments and refugee advocates differ on their interpretation of several key issues.

Interpreting Statistics. According to a survey of 23 European countries by the European Council for Refugees and Exiles (ECRE), 277,576 applications for asylum were registered in 1997, compared to 254,316 in 1996. The number applying to Ireland rose by 229%. Italy also experienced a huge jump of 145%, when 17,000 Albanians arrived fleeing turmoil in that country. But Germany – which takes in more refugees than the rest of Europe combined – registered a decline.

Seventeen countries experienced an increase in 1997, while six experienced a fall. The overall figure, however, was still far less than the 438,191 asylum seekers who applied in Germany in 1992.

No one would dispute that a sharp increase in arrivals can create a sharp political reaction, and throw off the best-laid plans. Holland, for example, has experienced a sharp increase in recent months which far exceeds the 1998 quota for refugees set by the government. Most come from Iraq and Afghanistan, and almost none have documents. (See accompanying story).

But war and turmoil rarely respect the tidy assumptions of well-ordered countries like the Netherlands, and advocates say that with political will even the most "destabilizing" arrivals can be handled. After trying to interdict Albanians at sea, for example, Italy relented and allowed those who applied for asylum to stay – suggesting that rich, developed countries can absorb refugees in need. Much depends on the way that the statistics are interpreted and "sold" to the public.

The Cause of Refugee Movements. The controversial Austrian paper seemed to suggest that the reason why refugees flee has shifted following the end of the Cold War. Instead of the classic 1951 notion of a "well-founded fear of (state) persecution," says the paper, the reason is more often "inter-ethnic persecution and displacement by non-governmental power-brokers." Neither is found in the 1951 Convention.

How valid is this? One important test-case is to be found in the Serbian province of Kosovo, where over 300,000 ethnic Albanians have been displaced by the Serbian armed forces. As reported in On the Record (Issue 1), European governments have declined to give refugees from Kosovo the broad temporary protection afforded to Bosnians since 1992, even though the war is no less intense. Germany and Switzerland have sent them back. But UNHCR has no doubt that the Kosovars fit the definition of refugees in the 1951 Convention, and has said so in several statements. This begs the question: is the Austrian attempt at redefinition another device aimed at ducking Europe's legal obligations?

Illegals. As noted above, governments view asylum seekers as "illegal" because they arrive without documents or use smugglers, traffickers, and organized crime. But advocates reply that it is virtually impossible for persons who are fleeing for their lives to secure visas and other "legitimate documents" in countries like Iraq or Sri Lanka. Even in Istanbul, western embassies are closely watched. And most western countries do not issue visas to persons suspected of "defecting," This is one reason why the 1951 Convention asks governments not to punish asylum seekers as long as they present themselves within a reasonable time and explain the irregularities.

The Policy of Containment

Some of the fiercest arguments concern Europe's efforts to contain asylum seekers in the region they are fleeing or in "safe third countries."

This strategy of containment goes back to the beginning of the 1980s, when European governments responded to the sudden influx of Sri Lankan Tamils by imposing visas. Visas have since become automatic whenever a country is caught up in unrest that seems likely to generate refugees. The burden of implementing the policy (and returning those without visas) falls on the airlines.

Containment has assumed many different forms in the 1990s. One of the most controversial is the creation of "safe havens" within the region generating refugees. This is modeled on the Kurdish enclave in northern Iraq which was established by Allied troops in 1991 and is still patrolled from the air. The experiment proved disastrous in Bosnia, where the UN Security Council established seven "safe areas" in an effort to protect displaced Bosnians. All seven were mercilessly attacked by the Serbs, and 7,000 Muslims were massacred when the "safe area" of Srebrenica fell in July 1995.

In spite of this, the K4 "action plan" for Kurds showed that the idea of havens is still alive and well in Europe. The plan talked of developing a "regional approach to protection" that could include "safe areas" within the region of origin. This was also termed "internal flight" options. But why would these succeed when others have failed? Even the "safe haven" for Kurds in northern Iraq looks increasingly unsafe: it has been the scene of constant infighting between Kurdish factions and is repeatedly threatened by Iraq. Hence the exodus of Kurds to Turkey. At the end of 1996, the Danish Immigration Service requested that the Foreign Ministry investigate conditions in northern Iraq. The latter found that the situation in the Kurdish enclave remained chaotic and unstable.

The K4 plan also called on the EU to help create "reception centers" in Turkey. But this too, alarmed refugee advocates because Turkey had shown little sympathy for the Kurds. As Bill Frelick of the US Committee for Refugees (USCR) points out, Turkey does not accept refugees from outside Europe, and only gives temporary visas to those who are accepted for resettlement in another country. Applications must be received within five days at a series of centers near the border. In general, Turkey views the Kurds as a threat to Turkey's own security because of their presumed support for Turkey's own Kurdish rebels (PKK). Trying to set up reception centers for Iraqi Kurds in Turkey, say advocates like Frelick, could be a prelude to their refoulement to Iraq. Lately Turkey signaled that it was not interested in setting up such centers if UNHCR was to be involved.

Safe Third Countries. Europe's grand plan also involves diverting or returning asylum-seekers to "safe third countries." These are primarily Poland, Hungary and the Czech Republic, which are being forced to overhaul their asylum laws and accept an ever-increasing share of asylum seekers in return for joining the EU. There are, in addition, scores of bilateral agreements, like the one between Germany and Poland under which Poland has been paid a lump sum of 120 million DEM dedicated for border controls.

But the question is whether these countries can indeed qualify as "safe third countries." Amnesty International told EXCOM that its researchers had found several asylum seekers detained at Budapest airport for weeks, without even a visit from UNHCR. Marton Ill, from the Hungarian group MEDOC, painted a grim picture of the way Kosovar asylum seekers are detained in seven administrative centers in Hungary – because western Europe will not take them. All this, say advocates, shows the limits to "safe third countries."

Burden-Sharing

The attempts to keep asylum-seekers away from the heartland of Europe have gathered pace with the move towards a single European policy on asylum. This envisages a tough "outer wall" which will be hard to penetrate. Once they are in, every effort will be made to ensure that asylum seekers do not concentrate in countries that provide generous social benefits.

Under two European agreements – the Schengen Convention and (its Europe-wide successor) the Dublin convention – the responsibility for deciding an asylum case will rest with the country of first arrival, even if the asylum seeker has moved on elsewhere in Europe. This is aimed at preventing refugees travelling around Europe "in orbit" until they find a way in.

Coupled with this, social benefits are being made less attractive. In Germany, for example, an amendment to the Social Security Act withdraws social benefits from rejected asylum seekers, even if they cannot immediately return home. This is thought to be aimed at the more than 200,000 Bosnians still in Germany, which the German government is keen to see leave.

According to ECRE, several governments are even reducing the benefits provided to those who receive refugee status. During 1998, Denmark lowered social assistance payments for refugees to 80% of that provided to nationals, and introduced penalties for refugees who refuse to participate fully in compulsory integration programs. This provoked a protest from UNHCR and earned Denmark a rebuke from ECRE at EXCOM.

Counterproductive

Advocates say that these measures are not only unfair, discriminatory and at odds with the legal obligations imposed by the 1951 Convention, but they are also counterproductive.

In the first place, they say, the more obstacles that are placed in the way of asylum seekers, the more likely it is that they will go underground and take advantage of traffickers and other criminals. In other words, Europe's Draconian asylum policies are fuelling organized crime – not exactly the intention of the K4. Second, it greatly increases the need for detention, which is easily the most expensive option. According to ECRE, Germany spends 50 million DM on detaining asylum seekers.

Deterrence backfires in other ways. John Morrison of the British Refugee Council points out that the "safe third country" system actually encourages asylum seekers to destroy their documents because they can only be deported to a "safe third country" if it can be proved (through documents) that they transited the country in question. This is why a small percentage of those who entered the German asylum system in 1994 were actually returned, says Morrison.

Harmonisation. In spite of the talk of harmonization, Europe's asylum policies are rarely consistent when it comes to determining refugee status from the same crisis. Between January and July of this year, when the fighting in Kosovo was at its height, Britain awarded refugee status to 88% of the 3,270 Kosovars that applied to the UK. But Germany's recognition rate for Kosovars was just 2.2%.

There were other anomalies: while Hungary accepted 23% of the Afghans who applied, Poland accepted just 0.42%. Belgium has offered its Bosnians the choice between an unlimited residence permit or return home – but Austria and Germany have ended their temporary protection. Austria recognized 7% of the Iraqis who applied for asylum in 1997 – while the figure for Switzerland was nearer 69%. While Britain recognized 14% of the Algerians, France deported hundreds back to Algeria.

How can these governments have such differing views of the same "persecution?" Whatever the answer, these variations show that when it comes to interpreting asylum requests from the same troubled countries, Europe's policy is anything but harmonious. Instead of "harmonizing" their policies of deterrence, governments should harmonize protection. While EU member statesare actively working on the harmonization of deflection, protection has been a mess of incoherent national norms ever since co-operation begun.

UNCHR's Role

UNHCR officials have watched the trends in Europe with some concern for years. Officials say that they will try to shift the debate back to the firm legal foundation of the 1951 Convention, but they also agree that UNHCR faces a major dilemma. If the agency pushes too hard, and protests too loudly, it risks getting excluded from a debate that is moving very fast indeed and is also secretive. UNHCR has no access whatsoever to the Center for Information, Discussion and Exchange on the Crossing of Borders and Immigration (CIREFI), a group that reports to the K4 group. NGOs will press UNHCR to take a stronger line and supervise the Convention. It all points to an intense few months.

How Europe responds will help to define its own identity, both as a unified region and as the most powerful player in a troubled world. Europe's emphasis on containment at source might be more credible if it showed more commitment to containing the threat to refugees, rather than their arrival in Europe. The K4 vision of containment starts after crisis has struck, and refugees have been uprooted. It is, in a very real sense, shutting the door after the horse has fled. If Europe applied half as much political muscle into preventing crises like the current assault against the Albanians in Kosovo, and into protecting refugees, say advocates, there might not be any refugees in the first place.

In a broader sense, however, the chaotic reality of a refugee crisis is fundamentally at odds with the reassuring imaginary vision of a united Europe that is able to manage and control refugee arrivals. As long as Europe vaunts its own prosperity without being able to help its less privileged neighbors find peace and stability, it must expect to be breached by desperate people seeking refuge.

• Iain Guest is a former UNHCR official and journalist. ECRE:  US Committee for Refugees Bill Frelick.

Trafficking People into the United Kingdom

Why do asylum-seekers turn to traffickers and organized crime, even though it is dangerous and illegal? Why do they not often declare themselves immediately on arrival – but prefer to go underground? European security officials are at a loss for an answer. In an attempt to find out, John Morrison profiled 24 refugees in the United Kingdom for the British Refuge Council. These extracts are taken from his report.

The favored clandestine method of overland travel (into Europe) seems to be in the back of a lorry, either in the lorry itself or within a container which might be loaded onto it. Travelling for longer distances in a confined locked space is highly dangerous for stowaways, whether or not the driver is aware of their presence: "After hours of frantic cries for help, 18 Sri Lankans slowly suffocated to death while hidden in a sealed container truck in a deserted car park in western Hungary on July 15, 1995. The driver panicked as he approached the German border, unlocking one compartment before abandoning the lorry."

Apart from crossing the English Channel, ferries and other boats also play a significant role in trans-Mediterranean migration. A lot of attention has been paid in the European media to the movement of Kurdish refugees from Turkey to Italy and Greece using a range of large and small boats. An estimated 20,000 people were caught trying leave Turkey during 1997, according to the Turkish authorities, the majority being Turkish or Iraqi Kurds. "For $5,000, small boats will carry a passenger across to one of the Greek Islands just off the Turkish coast. From there, fake documents are supplied for passage to Italy." Less affluent Kurdish refugees pay agents much less and attempt to swim across the Meric river directly into mainland Greece.

Although the largest vessels are relatively safe because they are easier to detect in the Adriatic, slightly longer Mediterranean voyages have ended in disaster and resulted in large-scale loss of life. The "Yiohan" collided with and sank a smaller boat onto which it was off-loading its passengers at gunpoint, somewhere between Italy and Malta on Christmas Day 1996. Over 280 migrants, who were locked in the ship's hold, are believed to have drowned; they included 92 Sri Lankans. The captain of the "Yiohan" had been charged with migrant trafficking two years previously. Other Mediterranean routes are important for refugees, including ferry services from North Africa to Italy, France, and Spain, and the small fishing boats('paternas') that ply the Straits of Gibraltar with a not insignificant risk of drowning their (most often North African) passengers.

The Traffickers- Good and Bad. Some methods of illegal travel, particularly those which are clandestine, will always be of high risk to the migrant's personal safety (i.e. stowing away in the hull of a deep-sea cargo ship). Yet illegal migrants are also extremely vulnerable to additional abuse and degrading treatment at the hands of their agents, other migrants, government officials, criminal organizations, and the crew employed by carriers.

Having said this, it is important to note that many of our case studies suffered no abuse at the hands of the agent, and that in some cases the agent was a close personal friend of the refugee or their family. If any general conclusion can be drawn from the 27 case studies, it is that agents are sometimes viewed as the protector. Most often they are just a service provider, carrying out a business arrangement in exchange for money.

It is very clear that some human trafficking has very little to do with refugee protection and a lot to do with sexual exploitation and other types of degrading treatment. The risk and the reality of rape directly affected two of the case studies: "About one month after I had been in hiding, my mother arranged for a man to take me to Yemen. I went there with him and stayed with him and his girlfriend. Throughout this time he raped me and beat me and told me that if I told his girlfriend or anyone else he would take me to the authorities and I would be sent back to prison in Ethiopia." Ethiopian female A (Case No. 5).

The journeys that refugees make to reach the United Kingdom owe their complexity and their "illegality" to the dominance of the European enforcement agenda over that of individual rights and refugee protection. There has been no systematic monitoring available to this author of the mortality rates associated with human trafficking into Europe. It should be noted, however, that one organization has attributed over 1,000 documented deaths to trafficking and the related polices of enforcement since July 1995.

Arriving in the UK. Refugees who manage to get as far as Britain and arrive illegally by organized means risk discrimination at different stages of the asylum process, based less on the legitimacy of their claim to be a refugee, but more on the means they have used to reach the UK.

During the passage of the 1996 Asylum and Immigration Act, the UK government showed its understanding of the issues facing refugees at the moment of "illegal entry": "We believe that it is easier for them [refugees] to be honest at the point of entry, having fled the danger of their own country, if that is what they have done. But what is unacceptable, and casts doubt on credibility, is an attempt to pass off a fake identity or forged passport as genuine. It is the dishonesty inherent in such an attempt which triggers the accelerated appeal procedure."

One of the main reasons why this assertion by the government lacks credibility is that it ignores the dynamic that human trafficking, now essential for so many refugees, has added to the entry process. It also discounts the very real fears a refugee may have of officialdom and of being returned to persecution without being able to present their case.

From the nationalities profiled in our case studies, Algerian, Chechen, Ethiopian, Sierra Leonean, and Sri Lankan refugees who claim asylum immediately upon arrival risk having to give a full substantive interview immediately. Such interviews raise serious difficulties for many refugees, especially after weeks of travelling and poor advice from their agent.

Without the assistance of a solicitor or a community representative, many refugees might find it difficult to suddenly "open up" to officials after having been asked to engage in deception for so long by their trafficker. "Moreover, some of those most need of protection – the tortured and traumatized – may be among those who find it difficult to articulate even the basis of a claim, until trust is established."

Many refugees are also known to suffer from Post-Traumatic Stress Disorder (PTSD) when they arrive in the UK: " I have seen many refugees who would walk a very long way to avoid having to pass a uniformed person in the street, even if they were a traffic warden such is their fear of uniformed officials of all sorts. Hardly surprising, when they arrive in the UK such individuals – who are sleep deprived and jetlagged, filled with not unjustified fears about being imprisoned once again – are highly unlikely to approach any of the huge variety of uniformed [or even plain clothes] officials they encounter."

Passing through immigration control illegally, by continued use of a false document for example, is clearly against the refugee's interests in terms of the current UK asylum procedure. Even if an asylum claim is made only hours after entry into the UK, the claim will be regarded as "in-country" and so there will be no entitlement to welfare benefits. In addition, because of the government's restrictive interpretation of Article 31(1) of the 1951 Convention, doubt will also be cast on the credibility of the asylum claim itself.

Yet there are very good reasons for refugees making in-country claims, not least the desire to seek family and community advice and support before approaching officials. It is also likely that many refugees do not understand the full consequences of their actions, that non-uniformed officials could actually be immigration officers or that they have the right to seek asylum at all. "I didn't know you could just walk in and claim asylum. I stayed here for a year and a half before people told me." Algerian male B (Case No. 2)

Those who have traveled to the UK with an agent or courier may have another reason for not claiming refugee status immediately upon arrival and surrendering their false travel documents to immigration. Because they are at the mercy of the agent: "The agent will give them information which is often false ... [In this case] the agent distanced himself and once they were through customs [and immigration] they met at a coffee shop and the [false] passport was returned. He had a good passport, the agent charged him $2,000 less on the basis he returned the passport." Community leader discussing Kurdish (Iranian) male A (Case No. 13).

Forged Documents. Good forged documents are expensive and so there is a real incentive for the agent to recycle them as much as possible. Until carriers' liability legislation started to bite, this could have been achieved overseas by collecting documents after exit immigration checks, but before boarding.

Now, with the carrier gate checks under the AGC system, agents or their couriers have three potential strategies:

• to collect documentation during the flight;
• to collect documentation air-side upon arrival before immigration controls;
• to collect documentation after entry into Britain.

It might seem clear that it would be in the refugee's best interests to conform to one of the first two strategies and allow an at-port asylum claim. Couriers would then leave the plane before their clients, usually on a legal EU travel document, and clear immigration before anyone claimed asylum. In such cases, refugees are sometimes instructed by agents to delay leaving the plane or to take a transit to another terminal (i.e. At Heathrow) and so disguise the flight's point of departure. A number of recent practices have attempted to thwart the agent's means of recycling documentation. For example, as part of "passenger profiling" some airlines will photocopy the documentation of passengers in a discriminatory (see quote below) or systematic way, or they will withhold the documentation of anyone who might be a potential asylum seeker, but with a possible forgery that is not "reasonably apparent" to the carrier (sometimes a suspicion based on no more than skin-color) for the duration of the flight. "At Lisbon Airport, the national airline of Portugal, TAP, has, since October 1991, photocopied the passports of all non-white passengers travelling to the UK, Germany, the U.S. and Canada, since, a spokesman said, they were all 'potential clandestine immigrants'."

False Documents or no Documents. This report has been very clear about how and why it is so difficult for refugees to travel using legal documents at any stage of their journey. On the basis of the testimonies of the case studies, it is evident that convincing fakes of Greek, Portuguese, Czech, Italian, and French passports or ID cards are available at widespread locations, as along as you are in possession of the necessary money and/or the contacts. There are known to be many such documents in circulation, not least because of large scale thefts of blank passports and identity cards from government offices in countries such as Belgium and Italy. One of the major limiting factors seems to be making the ethnicity of the refugee match the "racial stereotype" of known majority or minority communities and so avoid "passenger profiling" (hence the preference for Greek or Italian IDs for Kosovans or Kurds; or even a north European passport for Somalis) Extremely convincing counterfeits or stolen originals are known by western governments to be in extensive circulation around the world and to be of considerable financial value.

• These extracts are from the "Cost of Survival: The trafficking of refugees to the UK" (£9.95 plus Postage and packing) attention of Publications Assistant or write to: Publications Assistant, Refugee Council, 3 Bondway, London SW8 1SJ, UK. The British Refugee Council is coming online November 10. Email the Refugee Council.

The Netherlands – Waiting in the Queue

Over the last year, the Netherlands has found its tolerance strained by the arrival of tens of thousands of Afghans and Iraqis. Corinne Packer looks at the Dutch response.

Since January of this year alone, an estimated 35,000 to 40,000 individuals have sought asylum in the Netherlands. Of these, 50% to 55% have come from Afghanistan and Iraq. This has produced a pile-up: reception centers are packed and the numbers are rising since even rejected asylum seekers are not being expelled or returned.

The public debate is intense, and the parliament is trying to respond. Among the measures being considered, one would introduce waiting lists for asylum seekers. (At the moment, claimants wait up to 24 hours at a receiving center on arrival.) Second, anyone who has a "Dublin" claim – i.e. can claim asylum in another country – will not be given reception. Third, those rejected could be returned. They could include Bosnians, Iraqis, and Afghans: a new report by the Foreign Ministry, due out soon, is expected to recommend that Iraqis who make false claims or who are rejected be returned to northern Iraq. Afghans will be sent to Peshawar. New legislation is also expected soon, whereby claimants without official documentation will be automatically proclaimed "manifestly unfounded."

Iraqi Asylum Seekers. An estimated 800 to 1,000 Iraqis seek asylum in the Netherlands every month, and the Dutch Government is particularly careful in assessing their claims. Many Kurdish claimants have been found to come from Lebanon, Egypt or other countries in the Middle East.

In order to assess the veracity of the claims, the Dutch Government has established two country desks in Afghanistan and Iraq to supply information, help verify claims and generally monitor the situation in these countries. Second, it is establishing a system of language analysis, similar to that already used by Sweden and Switzerland, intended to confirm the asylum seeker's country of origin of by their language. The system will be in full application by 1999.

Debate over Official Documentation. There have been a number of policy debates in the Netherlands. One involves the absence, destruction or falsification of official documentation. The Dutch government (and some Dutch refugee organizations) believe a considerable number of asylum seekers destroy their own official documentation in the belief that it will assist them in their claim. They then go on to claim it has been stolen, is missing, or has been destroyed by other forces.

In response, the Dutch Government, like a number of other European Governments, has placed the onus on the claimant to prove that he or she has not been responsible for losing their documents. This has caused some concern among a number of NGOs and a voluntary group of experts; firstly, because providing this proof is a very difficult thing for the claimant, and secondly, because it is contrary to the 1951 Refugee Convention which places the burden on the receiving State to prove otherwise. Nonetheless, Dutch policy now states that applications by claimants who cannot prove that their documentation is official, or was truly stolen, will be deemed "unfounded" and the claimant will be refused asylum.

The problem is a delicate one. In the case of Iraqi refugees, for example, many come from northern Iraq. These individuals have no access to, or authority from which to obtain, official documentation. A great number of individuals have fled without documentation or have had it stolen. Those who do possess documents are still under scrutiny, since these may be pre-1991.

Kosovars and Algerians. Another policy debate has revolved around the inevitable limbo in which asylum seekers find themselves when they are being expelled or returned. At present, asylum seekers are granted a formal permit (known as the VVTV). This grants temporary status during their adjudication procedure and enables them to remain in the Netherlands for a maximum of three years. If after three years the Dutch Government deems the country situation to remain dangerous, individuals are officially granted asylum. If the country situation is deemed peaceful and safe, individuals are returned.

The current debate in the Dutch Parliament is over whether indicators can be identified to define "bad," "dangerous," or "ongoing war." Clearly, such situations are not black and white and each country must be considered individually. However, the Parliament feels it is important to recognize basic definitions. At present, this is of particular relevance to asylum seekers from Kosovo and Algeria. The government has failed to issue a VVTV policy for these groups (most likely because there has not been any formal EU decision). As a result, Kosovar and Algerian asylum seekers are being left in limbo: not returned but not given temporary status in the Netherlands either.

Returns. Now that peace is considered established in Bosnia, the Netherlands has followed Germany's example and decided it is time for Bosnian asylum seekers with temporary status to be sent back. For most of these individuals, the 3-year threshold has arrived or is fast approaching. Permits for temporary status are no longer being issued, yet the individuals are still waiting to be returned. In the meantime, individuals are simply waiting in reception centers, no longer able to pursue education, employment, skills, or language training, etc.

In reality, however, many are not being returned. As a result, individuals whose claims have been rejected generally find themselves in a state of limbo. In the case of Iraqis whose claims for asylum have been rejected individuals would normally be sent back to Iraq. However, these individuals have been left in the Netherlands with no status whatsoever.

Adjudication and Appeal Procedures. Finally, the Dutch Government has tried to improve their system of adjudication to reduce the time needed for applications to be processed. A number of steps will be implemented. For example, decision-making will be improved and made more efficient at the first instance by the adoption of concrete measures. A formal high court will also adjudicate appeals.

• Corinne Packer lives in the Hague. Srhe has written widely on womens' issues.

Sweden – Fighting Chain Refoulement

Germany returns Bosnians who sought sanctuary from minority areas in Bosnia, Sweden does not. As a result, hundreds of Bosnians have left Germany for Sweden. Gregor Noll reports on how Sweden is reacting – and how Sweden's dilemma has exposed a loophole in the "burden-sharing" provisions of the Dublin Convention.

Under the Dublin Convention, Germany is obliged to take back Bosnians who first sought sanctuary in Germany, but then moved on to Sweden. It is, however, probable that they would be denied protection in Germany and sent back to Bosnia. In the first half of 1998, only 34 of 2,726 asylum applicants from Bosnia were allowed to stay in Germany. In general, Sweden provides protection to such cases. Their return from Sweden to Germany would thus mean nothing less than chain refoulement, prohibited by Article 33 of the Geneva Convention. This poses a dilemma for Sweden.

The Swedish Aliens Appeals Board has recently referred a pilot case to the Swedish government, hoping for a precedent-setting decision. In the referral document, the tension between the (1951 Refugee) Geneva Convention and the Dublin Convention becomes very clear. The reallocation criteria in the Dublin Convention presuppose that the asylum procedures in all member states will produce the same outcome. In this case, they manifestly do not. But the Aliens Appeals Board considers that the formal (Dublin) agreement should reign supreme, and so advises the government to send the applicants back to Germany.

Interestingly, if the Swedish government sought guidance in the Dublin Convention proper, it would find that Article 2 reaffirms the obligations of all Member states under the Geneva Convention. Even if Dublin allowed member statesto process applications formally not under their responsibility, the political dilemma would remain. When a single member statedecides prematurely to withdraw protection, those affected will move to another Member State, compelling the latter to choose between its loyalty to international refugee law (Geneva) or to multilateral instruments of migration control (Dublin).

In essence, the Dublin system presupposes a central authority determining protection needs – that is, some form of European Asylum Tribunal, as earlier proposed from within the NGO community. A less ambitious solution would be to give UNHCR the task of commenting on state reports on compliance with the 1951 Convention. This would provide authoritative guidance, although without legally binding effect. At the NGO meetings preceding EXCOM, this was discussed, but senior UNHCR officials did not believe that states were willing to support the idea.

A recent proposal on Temporary Protection from the EU Commission adds another angle. This suggests a mechanism under which the European Council would take common decisions on the "phasing-out" of such protection. The rationale is precisely to inhibit so-called "secondary flows." But the European Council is not a court. Phasing out would become politicized, at the expense of protection. And, finally, a mechanism based on Temporary Protection would not address the clash of the Geneva and Dublin Conventions. Sweden's dilemma would remain as real as ever.

• Gregor Noll is based at the Raoul Wallenberg Institute in Lund, Sweden. He is writing a doctorate on asylum law in the European Union.

Part Two

Refugee Advocates Launch Campaign Against the Detention of Asylum Seekers

Revised UNHCR guidelines will urge governments to seek alternatives to detention

NGOs have launched a broad assault against the growing practice of detaining asylum seekers, and pledged to support UNHCR's efforts to find alternatives to detention.

Detention has become a major bone of contention between refugee advocates and governments. Governments insist that they have no alternative but to detain asylum-seekers who arrive without documents, with false documents, or by other illegal means.

But advocates feel that detention is being used to deter and punish, in clear violation of the 1951 Refugee Convention. As such they see it as part of a wider, insidious trend aimed at preventing refugees from reaching western countries. Speaking at one briefing during the UNHCR EXCOM in Geneva, eight prominent human rights groups described several gruesome aspects of detention and pledged an all-out campaign.

The campaign has already begun in the United States, where over 100 groups have formed a coalition named "Detention Watch." As of August this year, 15,000 persons were detained by the Immigration and Naturalization Service, representing a 70% increase in two years; 8,000 are being kept in local jails, with almost no oversight from INS. (See accompanying story).

Following EXCOM, many expect UNHCR's Division of Protection to engage more actively in the detention debate. The EXCOM conclusions on protection "deplore the fact that many countries "routinely detain asylum seekers on an arbitrary basis."

Detention is not specifically prohibited by the 1951 Refugee Convention, but several articles require that asylum-seekers be allowed freedom of movement. The Convention also states that governments "shall not impose penalties on account of (their) illegal entry or presence." In other words, asylum seekers are not to be considered criminals, even if they entered a country illegally.

This will be restated again in new guidelines on detention, which will be issued soon. UNHCR officials say that they will provide a clearer definition of detention (for example, whether it applies to airports) and set out the limited circumstances in which detention is permissible. These can include in time or war, or to protect national security. The new guidelines will also spell out alternatives in greater detail.

UNHCR officials promise a big push to implement these guidelines, which were drawn up after a lengthy period of consultation with governments and refugee advocates. This will be part of an effort by UNHCR to put refugee protection back onto a firmer legal basis, instead of the ad hoc "pragmatic" approach increasingly favored by governments.

Detention, they say, is abused as a deterrent for all categories of illegal entrants – among them, even refugees. Deterring refugees from seeking asylum means undermining the rationale of the 1951 Convention as well as the right to seek asylum enshrined in the 1948 Universal Declaration of Human Rights.

Speaking at the EXCOM briefing, Leanne McMillan, from Amnesty International, denounced "a decade of restrictions." These included the imposition of visas as soon as a country enters a period of turmoil (Bosnia in 1992, Haiti in 1991 following the coup); interdiction on the high seas; preflight screening; carrier sanctions (under which airlines are expected to weed out bogus asylum seekers); and the current practice of returning asylum seekers to "safe third countries."

Splitting families and denying them social assistance also makes it harder to apply for asylum, she said. "Inadequate and unfair determination procedures are forcing asylum seekers to rely on traffickers and illegal procedures to get to safety. Some go underground and some give up and fly home."

Somewhat surprisingly, in view of its reputation as a country of immigration, Australia became a target for advocates at EXCOM. Australia has detained all those entering without a visa since 1992. A recent decision of the UN Human Rights Committee found that this was arbitrary and a violation of Australia's obligations under the International Covenant on Civil and Political Rights.

Stung by the criticism and the bad publicity, the Australians issued a 5-page memorandum at EXCOM insisting that the detention policy is clearly prescribed in law and is subject to review as well as full parliamentary scrutiny. Only 189 asylum seekers were in detention at the end of June, representing 1.5% of the 12,393 awaiting a decision; 108 have been found not to be refugees, and the remainder are awaiting a decision on their application. Twenty-six minors are in detention, said the memorandum "because this allows them to remain with their parents."

But critics feel that any detention is unnecessary as well as counterproductive. Margaret Piper, from the Refuge Council of Australia, pointed out that 80% of those who apply for asylum in Australia are accepted – and that over a third will have been detained. This, she said, produces guilt, shame, and lethargy as well as a profound anger against their new country. "They are reminded of what they fled," she said. "Governments have to recognize that detention is not a neutral experience. It has a profound impact on those detained."

In spite of government protests to the contrary, there is growing agreement that policies like Australia's is intended to punish and deter asylum seekers, in clear violation of the 1951 Convention. Eve Porter, from the Jesuit Refugee Service in New South Wales, pointed out that the major detention facility (Port Headland) is 4,000 kilometers from the major cities. This makes it hard for lawyers, and leaves those in detention "virtually incommunicado." Detainees have medical care, she said, but no phones – and so are rarely informed of their right to even seek counsel. She cited one case in which two minors, aged 16 and 17, were sent back to Singapore before their case was even reviewed. They were issued with visas to return, for the completion, but the visas expired before they arrived back. This underlined that the policy was "highly punitive."

A recent study done by Porter for the JRS found that asylum seekers are likely to be detained for longer periods than common criminals, and are less likely to receive bail. As of April 1997, 15% of those studied had been detained for periods of more than two years – the kind of sentence normally given to robbery, sex offences and drug trafficking. Moreover, said Porter, common criminals tend to benefit from bail more than detained asylum seekers. 93.9% of those charged with larceny were granted bail. But according to the Australian Human Rights Commission, only two children out of the 581 detained since 1994 have been granted bridging visas.

Advocates from other countries point out that the conditions of detention are often extremely grim. In the United States, where only 11% of all prison inmates have access to legal counsel, women have been shackled after a miscarriage, injected with sedatives, raped, and forced to sleep on floors, said Mary Diaz from the Womens' Commission on Refugee Women and Children.

Many feel that this kind of policy, in countries that are supposed to be stalwart defenders of the 1951 Convention, is setting an appalling example. Marton Ill, from the Hungarian group MEDOC, said that seven new detention centers had been set up this year in Hungary, largely in response to arrivals from Kosovo. Conditions are worse than common jails, he said. One center has three showers for 120 people, and serves pork fat in the food (to the Muslim Kosovars). These centers are completely unregulated. They have been established because EU governments are unwilling to give the Kosovars even temporary protection. Ironically, however, Hungary is considered a "safe third country" by European governments.

Armed with this kind of information, NGOs will use the new UNHCR guidelines to insist that alternatives to detention can be developed that address the concerns of governments while still respecting the rights of asylum seekers. Ophelia Field, from the European Council on Refugees and Exiles (ECRE), said that they could include reporting requirements; the surrender of travel documents; residency requirements; supervision (including by NGOs); bail and other guarantee systems; and open reception centers. She also urged that governments provide counseling for those who are rejected, before they return home.

This, she said, is not only humane, but cost-effective. Germany spends 50 million DM a year detaining asylum seekers, she said. "Every alternative to detention is cheaper."


Canadians Generous, But Families Being Split

Canada is generous in the number of refugees that it takes, but the process also splits families, says Manisha Thomas.

According to the UNHCR, Canada "is one of the relatively few countries worldwide which maintains an annual resettlement quota". In 1998, Canada plans to accept between 24,100 and 32,300 refugees – about 10% of the annual immigration intake.

But the process can also take its toll on families. Those who are accepted as Convention refugees can apply for landed immigrant status, which provides most of the same rights as Canadian citizens. When applying, they indicate which family members they want to bring to Canada upon the granting of status.

But the road from acceptance as a Convention refugee to landed immigrant can take anywhere from six months to over ten years. During the wait, refugees are not allowed to sponsor family members to come to Canada, nor do they receive all the same benefits enjoyed by Canadian citizens or landed immigrants. "Refugees are being treated as second class citizens in Canada while they are in this limbo," according to Francisco Rico-Martinez, President of the Canadian Council for Refugees.

The result is that families can remain separated for long periods of time. According to an official from the Immigration and Refugee Board of Canada, approximately 75% of refugee claimants are males, many of whose families often remain behind in refugee camps. Single mothers are often forced to leave their children behind. Children who are accepted as refugees do not have the same ease of access to post-secondary education as citizens and landed immigrants.

Why the long delays? One reason is the security checks. On average, it takes approximately 18 months for refugees with ID to be granted landed immigrant status. Those without acceptable identification papers will have much more difficulty. Approximately 65% of refugee claimants coming to Canada do not have proper identification and of that number, two-thirds have no identification at all.

Before landing, refugees are required to pass a medical exam and pay a processing fee of Cdn$500 per adult and $100 per child. They also pay a "right of landing fee" ($975 per adult), which amounts to a head tax, according to Anne Woolger of the Canadian Baptist Refugee Services. UNHCR has protested the imposition of such fees, but they continue to be collected.

While waiting for landed immigrant status, refugees are only allowed to travel outside the country if they get a minister's permit, which almost never happens. There have been many cases of refugees being unable to even get permission to visit ill relatives, according to Rico-Martinez.

It is hard to lead a normal life during the limbo period. It is difficult to get loans and refugees can face barriers to employment and to post-secondary education – if their children are in the country. Those who arrive in Canada without their families must wait until their application for landed immigrant status is accepted before bringing in family members. Even then landed immigrants are only allowed to bring their children under 18, their spouse, and parents. Extended family members cannot be included. If the process is not completed before a child turns 18, there is the possibility that landed immigrant status will not be granted to the child.

Canada's immigration policy is currently under review. UNHCR and NGOs have made several recommendations. It can only be hoped that the recommendations are incorporated and that the barriers to family reunification will be eased.

• Manisha Thomas worked at Human Rights Internet in Ottawa. 
• Inter-Church Committee for Refugees (Canada)
• Canadian Council for Refugees

The United States Uses County Jails for Detention

Fifteen thousand persons are detained by the US Immigration and Naturalization Service (INS), following the passage of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. The pressure to detain is so great that 60% of those detained are in local jails. As the following extracts from a recent Human Rights Watch report suggest, this exposes them to poor treatment and a lack of oversight by the INS.

As of February 1998, the INS held valid contracts with 1,041 local jails. In the INS/jail arrangement, administrative immigration detainees are handed over to the care of local jails, which are paid daily fees by the INS that vary between $35 to $100 per detainee. The influx of federal money has been a boon to local economies. In York County, Pennsylvania, revenue from the INS increased from $600,000 in 1992 to an expected $6 million in 1998 – $2 million of which is profit.

INS detainees have become a desirable source of profit for local jails. The Corrections Corporation of America (CCA), which has long recognized the profit to be made in privatized detention, has also entered the INS detention/local jail arena. The Chief of Security for CCA, which runs the Liberty County Jail in Texas, even asked Human Rights Watch researchers if they knew of ways to get more INS detainees.

The INS has begun to recognize the importance of establishing minimum standards in its own detention centers and contracted facilities, but it has failed to extend the same standards to local jails; instead relying on whatever particular state or local standards are binding on jails. As this report illustrates, the result is inconsistent and inadequate treatment for detainees unlucky enough to be held in one of the hundreds of local jails used by the INS throughout the United States.

INS detainees are not serving criminal sentences, they are not awaiting a criminal trial, and administrative detention is not punishment. But when the INS contracts with local jails to hold detainees, the agency does not require that its administrative detainees be held separately from the general criminal population. The result is that, very often, INS detainees may share living and sleeping quarters and cells with criminal inmates who may be awaiting trial for serious, even capital, crimes. Human Rights Watch found that female INS detainees were even more likely than men to be commingled with accused or convicted criminal inmates in local jails.

Commingling of local inmate populations and INS detainees can put detainees at serious physical risk. J. Anwar, a Pakistani detainee held in St. Martin Parish Correctional Center in Louisiana, had his jaw broken and teeth knocked out when a criminal inmate attacked him on May 3, 1998 in the living quarters they shared. Although the living area was supposedly monitored by correctional officers, Anwar told Human Rights Watch that no officer appeared until, already injured, he banged loudly on the door.

Anwar had informed the INS many times that he believed he was in physical danger the jail. Human Rights Watch also made requests to the INS on Anwar's behalf, asking that he be transferred to another facility several months before the attack that left him with a broken jaw and other injuries. Despite several calls and letters to the New Orleans district office from Human Rights Watch and from the Catholic Legal Immigration Network office in Oakdale, Louisiana, Anwar was still held at St. Martin Parish Correctional Center at the time of this writing and has once again been returned to a commingled living area, sometimes sharing a cell with a local inmate.

Living Conditions

"I am locked in a cage 24 hours a day. The food is very little. There is no light in my cell. There is no law library. The place is filthy. It looks like a dog pound." (INS detainee in Beauregard Parish Detention Center, Louisiana)

International standards call for humane treatment of detainees, but many of the hundreds of local jails used by the INS, some built as long ago as 1910, subject detainees to inadequate and sometimes inhumane living conditions that include overcrowding, little or no outdoor exercise, insufficient clothing, limited hygiene products, and insufficient quantities of food.

Local jails are designed to hold accused and convicted criminals on a short-term basis, and therefore, usually do not offer educational programs or work opportunities – leaving detainees absolutely idle for months or years at a time. Libraries are limited or non-existent, and few facilities have reading materials in the languages of the detainees. Detainee complaints about the physical environment of jails range from cigarette smoke-filled air, to cockroaches, and vermin sharing their cells.

Physical Space

The physical environments of the jails used by the INS vary in management, cleanliness, and size. But jails, new and old, have one thing in common: they are designed to control and contain accused or convicted criminal populations for limited periods. As a result, even the cleanest, newest jails subject detainees to hours of mandatory lockdown; house people in small, crowded spaces; punish people for failure to understand rigid jails rules; and, in general, are inappropriate places to hold administrative detainees, especially asylum seekers.

One of the most inappropriate jail arrangements Human Rights Watch encountered during the course of its research was in the Chicago INS district. According to detainees, the city jails are little more than police lock-ups and therefore have no on-site medical units, no kitchens, no shower facilities, and no libraries, nor do they offer outside recreational time. Detainees are not allowed visits from their friends or family and, in some jails, are prohibited from making telephone calls, including to legal counsel.

Worst of all, the INS detainees that are most likely to be placed in the city jails each night were ill or disabled detainees that the larger county jails would not house, and asylum seekers waiting for credible-fear interviews. According to the INS, DuPage County Jail would not accept detainees who were taking heart medication, disabled, or who had active tuberculosis. As a result, one blind Jamaican detainee was held in the city jail arrangement for eight months.

In Liberty County Jail in Texas, Human Rights Watch found 18 female INS detainees living in one large, cold, damp room in the old part of the jail built in 1936. Euless City Jail, located outside Dallas, is used by the INS because of its proximity to the international airport. It is a small facility of 48 beds built almost 30 years ago and intended to hold people only on a temporary basis. It has no on-site food preparation, no doctor or nurse on staff, no outside recreational facilities, no library, and one shower for all inmates. There are no windows in the living area, where detainees spend all day on bunk-beds in cold dark cells. When Human Rights Watch visited the jail at midday, all of the INS detainees were lying on their beds wrapped in wool blankets.

Recreation/Exercise

Exercise and fresh air are fundamental to maintaining adequate physical and mental health, especially when people are detained for months or years in poorly ventilated, smoke-filled jails with few other activities. International standards dictate that prisoners should receive one hour per day of exercise in the open air. The American Correctional Association standards also provide that inmates should be allowed one hour daily of physical exercise outside the cell, outdoors when weather permits.

The INS policy requires that all new and renegotiated contracts stipulate that detainees be given the opportunity to "recreate daily." Yet the lack of the policy's enforcement was evident when dozens of INS detainees told Human Rights Watch that they are seldom or never allowed outdoor recreation time or that recreation often depends on the whims of the correctional officers on duty on any particular day. "We never get to go outside," a Vietnamese detainee held in Dallas County Jail told Human Rights Watch. "[T]here is a weight room, but you have to sign up and share it with other, criminal inmates." At Clark/Frederick/Winchester Adult Detention Center in Virginia, jail officials stated that no inmates are allowed outdoor exercise when the temperature is lower than 55 degrees because the jail did not want to have to provide outerwear.

Food

Complaints about the quality of institutional food are common among detained individuals, and INS detainees in local jails are no exception. Often, Human Rights Watch was told that food rations were insufficient or served so early in the morning that detainees were hungry by the end of the day. For example, one Somali asylum seeker who had been detained at DuPage County Jail in Illinois for five months at the time of our interview told Human Rights Watch that he had lost 20 pounds because of stress and anxiety and because there was "not good food. Not enough food."

Many jails tried to accommodate religious dietary restrictions when ordered by doctors or tried to accommodate detainees who requested vegetarian meals for religious reasons. Still other jails made their own limitations: "We don't do kosher," a jail official at Fort Lauderdale City Jail told Human Rights Watch. "Unconstitutional. We don't have to." Hardeep Singh, a Sikh Indian asylum seeker held at Orleans Parish Prison, told Human Rights Watch that when he asked for a vegetarian meal, jail officials told him to just throw away the meat. "But there's not much food left after you throw away the meat, so now I just eat it."

Educational Programs/Activities

Since jails are intended to be short-term facilities, many do not have any educational or vocational activities. At DuPage County Jail in Illinois, jail officials said that detainees could participate in Alcoholics and Narcotics Anonymous programs, high school equivalency classes (GED), college-level classes and anger control classes: the jail official even included commissary (where candy, batteries, etc. are purchased) in the list of programs. Detainees held at the jail, however, told Human Rights Watch that no programs are offered to them, so they just sleep and watch TV during the day. One detainee stated that he could take the GED test through the jail, but was not allowed to take the preparatory classes.

Even when detainees take the initiative to try to acquire skills during their detention, some jails thwart these efforts. Soeung Chhunn, a long-term Cambodian detainee in Orleans Parish Prison in Louisiana, made a request to take a correspondence course for which his family had offered to pay. On the request form, he wrote, "I'll pay for the tuition and book, there is no expense to the government." He received a response the next day: "Request denied." No further explanation was offered.

The ability to take classes is especially important to Chhunn, and others like him who are long-term unremovable detainees, since efforts at self-improvement will help them obtain release in the New Orleans pilot release project. When a jail offers no vocational or educational programs, there is no way for people to earn credits toward release. No detainee interviewed by Human Rights Watch in Orleans Parish Prison had ever received classes in anything.

Some jails allow detainees to work. Vermilion Parish Jail in Louisiana even allowed long-term detainees to gain trustee status, such that they could work outside the jail facility. But at Liberty County Jail in Texas, detainees told Human Rights Watch that working in the jail was voluntary but that once one had agreed to work, failure to do so would result in disciplinary action. One female detainee from Mexico said that she fell while she was working in the kitchen at the jail. After four days of recuperating, she was told by jail staff to go back to work. "They told me, `If you quit, there is a penalty.' The usual penalty is getting locked down in your cell."

Mental Health Care

The stress of months or years in INS detention takes a severe emotional toll on INS detainees. The punitive environment of a jail, the detainees' frequent fear of local inmates, and the uncertainty of when, if ever, they will be released or deported is often too much to bear and has led to depression and suicide attempts. Asylum seekers are particularly vulnerable as detention often evokes memories of past persecution and anxiety over being returned to the countries from which they fled.

International standards for the treatment of prisoners call for medical staff who have knowledge of psychiatry and require that the effect of continued detention on the mental health of prisoners be considered. ACA standards also contain several provisions for the diagnosis and mental health care needs of inmates. Unfortunately, the new INS Detention Standards, applicable only to Service Processing Centers and contract facilities, make no mention of mental health care needs of any detainee, much less any reference to the special needs of asylum seekers.

Again and again, detainees expressed to Human Rights Watch the emotional anguish caused by incarceration. In Berks County Prison in Pennsylvania, Guy Mbenga-Mondundou, an asylum seeker from the former Zaire, explained to Human Rights Watch that he attempted suicide by hanging himself after he learned that his wife had miscarried while he was detained. "I have become depressed," wrote Chinese detainee Chen Sie En from Orleans Parish Prison in Louisiana. "I can't stand it any more. I don't care if I am sent back to China or released on bail. I just have to get out." An Indian asylum seeker at Krome Service Processing Center, who had been detained more than two years at the time of our interview, echoed this sentiment: "I want deportation. No more jail – if I die, then I die. Fine."

Communication with Legal Counsel

Two very basic requirements for adequate legal representation are not being met when INS detainees are held in local jails: the ability to make initial contact with attorneys for possible representation and the ability to maintain ongoing communication once an attorney is retained.

The first obstacle is the difficulty of simply obtaining a list of legal service providers who will represent immigrants at little or no cost. Internal INS procedures require that the list of legal service providers be given to detainees at the same time the Notice to Appear is issued (usually upon their initial detention by the US Border Patrol or when transferred into INS custody). But Human Rights Watch found that this rarely happened in the districts visited. Many detainees only received a list of legal service providers after they were brought to immigration court – in other words, when it was too late to make a difference.

If detainees have not been able to consult with a legal representative before their first hearing, they may have no idea about what relief from deportation is available to them; as a result, they run the risk of accepting deportation when they, in fact, have other options. Such ignorance of legal rights can have deadly consequences in the cases of refugees fearing persecution who may not know that they have a right to apply for asylum.

At the Dallas County Jail, Human Rights Watch interviewed a Mexican detainee, JosŽ Reyes, who had been held for four months and had yet to appear before an immigration judge. After living illegally in the United States since 1990, Reyes did not believe that he was eligible for any immigration relief and wanted to accept deportation to Mexico, a process that normally takes days after appearing before a judge. Reyes wanted to contact a lawyer, but since he had not been to court, he was never given a list of legal service providers. As the weeks went by, Reyes said he wrote to the INS several times about his case, but never received a reply. He told Human Rights Watch that he did not even have an immigration case file number that he could use to check the status of his case.

Once a detainee actually receives a list of legal service providers, the obstacles to legal assistance are still not removed. Virtually all of the advocates with whom we spoke told us that the lists provided by the INS featured outdated, incorrect, or useless information. Also, telephone access at jails is usually limited to collect national calls only. International collect calls are rarely allowed, which may prejudice asylum seekers who need documentation from their countries of origin. Restrictive telephone policies make it hard for detainees to know what is happening to them procedurally. For example, an INS detainee reported that at Dallas County Jail in Texas, the INS's toll-free number that provides information on court dates and immigration case status is blocked on jail telephones.

• Contact information for Human Rights Watch: New York : London ; Brussels.

Privatizing Deportation from Australia

What should happen to asylum seekers whose request for refugee status has been rejected? The question has been much debated in Australia, after it was disclosed that the government had employed a private South African firm to deport Somalis. Eve Porter explains.

Where an asylum seeker has failed in her or his bid to secure refugee status through a fairly-implemented determination procedure in Australia, the Minister for Immigration is entitled to take steps to remove such a person from Australia.

The Department of Immigration has established a practice of engaging the services of a company known as P&I Associates International. P&I is a South African company specializing in "a complete management service in the repatriation of inadmissibles É to the individual's country of origin." This is their "core business."

In June 1998, P&I arranged for the removal of a Somali asylum seeker, who had been found by the Refugee Review Tribunal not to be a Somali and therefore not to be a refugee. Subsequently, however, and without his knowledge, the Immigration Department procured Somali travel documents for him. They also entered into an arrangement with P&I for his removal from Australia to Somalia. The fee was to be something in the order of $12,000, plus a daily amount for guarding and a daily amount for accommodation.

An injunction was granted preventing the removal. The notion of privatized deportation procedures certainly appeared to alarm Judge Hayne, before whom the application was heard. The application has been withdrawn, the putative refugee having been granted permission to make a second application for a Protection Visa under s48B of the Migration Act on the grounds of new evidence.

But the incident raises obvious questions about the morality of allowing a private firm to remove rejected asylum seekers (usually via South Africa to other parts of Africa) when the country of origin has not been identified and the documents for return to the country of origin have not been obtained prior to removal.

Is there any justification? It is true that the Australian Government has been faced with some difficult removal cases where an asylum seeker's country of origin has not been established. The Government's argument is that it is, therefore, reasonable to remove such people to South Africa in the custody of P&I pending identification of and return to their country of origin. Identification of a person's country of origin can sometimes be a difficult task and asylum seekers are not always cooperative (sometimes with good reason).

But that does not allow the state to hand the responsibility over to a private company, off shore and after removal of the person in question from Australian territory. In Australia, the Government remains ultimately accountable for what goes on in its prisons and detention centers. Although the Department of Immigration has argued that the Minister remains accountable to the Parliament, the conduct of the executive must still be subject to judicial scrutiny. But once outside Australian airspace, such activities are not amenable to Australian government and legal control or scrutiny. The Australian judicial arm does not, of course, extend to South Africa.

How can the Australian Government remain accountable (politically and legally) for the treatment of a person placed in the hands of a company based and registered in South Africa, to be held in custody outside Australian territory? P&I is a subsidiary of the Rennies Group which is itself a subsidiary of Lloyds, and it has been suggested by a senior Australian Government official that this shows that P&I is respectable and not a group of "fly by night thugs." There are, however, reports that two staff members were some years ago convicted of the torture and murder of a black colleague.

There has to be accountability when human beings are at risk. Yet the Australian Government seeks to disown its responsibilities. The private entity agrees to take responsibility for the transport of a person to a specified place against her/his will. The Australian Government has placed the individual into the custody of another who will hold them for an undetermined period and in conditions over which the government has no control, just as it can have no ultimate control over the person's destination.

In an editorial piece in The Age on 24 June which talked about the P&I case, the following was said: "The use of what many would regard as foreign mercenaries to send people back to war zones can do nothing to enhance our international reputation. Yet even more important than what others think of us is what we think of ourselves. Australia has always prided itself on being a humane democracy and it should remain so."

• Eve Lester is a refugee research and policy officer with the Uniya/Jesuit Social Justice Centre in New South Wales, Australia. PO Box 522, Kings Cross, BSW 2011. (tel: 02 9356 3888)

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