Since 2015, 86 asylum seekers have been detained in New Zealand in criminal detention facilities for months or, at times, years (Amnesty International, 2021). An asylum seeker can be detained on immigration grounds, up to the discretion of immigration officers following section 311 of the Immigration Act 2009. If there is uncertainty about a claimant’s identity or they are considered a threat to the nation’s security, they can be imprisoned until their asylum claim has been processed under sections 310 and 316 of the Immigration Act. In May 2022, Immigration New Zealand announced that long-term detention would end after an independent review of the practices and circumstances the detained asylum seekers experienced in prisons (Amnesty International, 2022)

The shift from detention to dissolution will need significant policy and legal change to ensure asylum seekers are treated humanely in the interim period and the alternatives to detention. This text will look at how other countries have shifted their detention policies and what New Zealand can do to implement safe and welcoming practices to protect claimants.

New Zealand should take inspiration from other countries´ successful detention strategies, which focus on respect and community building. Some European countries maintain a procedural safeguard on detention facilities, such as providing legal aid for the detained (Majcher & Flynn, 2018). Legal aid is free in Italy, Latvia, Luxembourg, Netherlands, Norway, Slovakia, and Sweden (Majcher & Flynn, 2018). France has enhanced these safeguards by codifying that all detention centres must have an NGO that supervises and provides services daily (Majcher & Flynn, 2018).

In a report written by the Norwegian state’s Ombudsman, the Global Detention Project and the Norwegian Red Cross, a list of recommendations was made to ensure that countries follow Article 5 of the European Convention on Human Rights and Article 9 of the International Covenant on Civil and Political Rights. These protect the right to liberty and freedom from arbitrary detention. Inspired by Swiss detention practices, they found staff should work without uniforms or with arms. An ethnically diverse staff should be trained to deal with persons who have experienced severe trauma. There should, moreover, be at least one social worker available for the claimants.

Freedom of movement is also essential to negate the carceral elements, such as having private access to their rooms, such as in Sweden or France. In Sweden, the detainees receive mobile phones while in the centre and have internet access. They can call legal aid and the National Migration Agency for free. Preparing their food was also crucial to support detainees’ well-being and health, such as in Switzerland. It was found that cooking for themselves provides autonomy, especially since food culture usually differs from the country of origin and country of detention.

Having a range of activities for children and adults, where staff can also participate, provides a welcoming and stimulating life for the detained. The report also included the prospect of the detained working with the staff, such as cleaning and organising activities to ensure it resembles more of a neighbourhood than a prison.

The UN Committee on Migrant Workers and the Global Detention Project published the Freedom from Arbitrary Detention Report in 2021. It provides that countries should establish specific systems to ensure accountability and provide access for asylum seekers for judicial remedy if human rights are violated. Alternatives to detention must respect the right to personal freedom and not create restrictions or conditions.

The report highlights that many alternative systems to detention compare to those within the criminal justice system. Examples of practices include bail, restrictions on movement, electronic surveillance, or periodic reporting to the authorities. The report stated, “In some cases, they can exacerbate the stigmatisation of migrants, unnecessarily interfere with their freedom, generate excessively onerous requirements, and may even amount to de facto detention.” (Muhamat & Flynn, 2021, p. 11). New Zealand must mindfully not implement such systems.

The report recommends prioritising a community-founded system, where case management and support are adapted to each family and person, specific to their needs and vulnerabilities. The methods should ensure that people can live freely in local communities, where legal assistance, psychosocial support, health care, education and housing should be guaranteed. Safeguards on immigration policies must be accessible in law and limited in duration. They should be subject to procedural safeguards, including regular judicial review and independent supervision, to ensure they protect the rights and dignity of the individual.

Belgium has introduced systematic supervision of all families with children in detention, with NGOs providing legal assistance (UNHCR, 2020). In 2019 detention of children was made illegal. Now, there exists a legal obligation to practice “less coercive measures” (UNHCR, 2020, p. 31) with many local NGOs piloting projects with the Belgian Immigration Office. There is a maximum length of detention of 2 months, and the definitions of high-risk individuals have been expressly defined in legislation with a high threshold. Alternatives to detention include open return houses, where asylum seekers have a curfew around night times to report to officials or designated residences for families.

The UNHCR Global Strategy notes the importance of consistency between regulation and legislation, the current lack of a systematic mechanism to identify individuals’ needs and vulnerabilities, and the need for data collection and analysis on national as well as global levels. Few countries have transparent systems to collect, analyse and report conditions and statistics, something New Zealand could attentively work towards establishing.

New Zealand’s promise to end detention should be legislated and regulated to ensure the new policies do not continue to mimic criminal justice procedures. Furthermore, in the interim period and the alternative approaches, the mechanisms and systems must prioritise and ensure the claimant’s autonomy and freedom. They should be treated in ways that understand their vulnerabilities, with support networks in medical and psychosocial aspects. With many claimants facing a maze of legal confusion and a bureaucratic jungle, Immigration New Zealand should provide them with clear and accessible information about their rights and guarantees.​

Bibliography

Amnesty International. (May 2022). New Zealand to stop imprisoning people seeking asylum.https://amnesty.org.nz/nz-stop-imprisoning-people-seeking-asylum.

Amnesty International. (2021). Aotearoa New Zealand: Please take me to a safe place: The imprisonment of asylum seekers in Aotearoa New Zealand. https://www.amnesty.org/en/documents/asa32/4113/2021/en/.

Flynn, M., Grange, M., & Majcher, I. (2020). Immigration Detention in the European Union. Global Detention Project.

Majcher, I., & Flynn, M. (2018). Harm Reduction in Immigration Detention. Global Detention Project and Norwegian Red Cross. https://www.globaldetentionproject.org/harm-reduction-immigration-detention.

UNHCR (2020). UNHCR Global Strategy Beyond Detention: Final Progress Report, 2014-2019. Division of International Protection United Nations High Commissioner for Refugees. https://www.unhcr.org/protection/detention/5fa26ed64/unhcr-global-strategy-beyond-detention-final-progress-report-2014-2019.html.

Muhamat, A., & Flynn, M. (2021). General comment No. 5 (2021) on migrants’ rights to liberty, freedom from arbitrary detention and their connection with other human rights. UN Committee on Migrant Workers and Global Detention Project. https://www.globaldetentionproject.org/committee-on-migrant-workers-general-comment-no-5-2021-on-migrants-rights-to-liberty-freedom-from-arbitrary-detention-and-their-connection-with-other-human-rights.