From Persecution to Prison - Bellevue/NYU Program for Survivors of ...

elease the petitioner if a violation is found. 210 In another case against Finland,the Committee found that seven days of detention without recourseto a court, despite an administrative review of the asylum seeker’s detention,violated his right to be free from arbitrary detention. 211UNHCR has given further clarification on factors demonstrating thearbitrary nature of an asylum seeker’s detention. Detention can be arbitrarywhen it is: disproportionately long, for an indefinite period, based ona law that permits arbitrary practices or is enforced arbitrarily, lacking anindividualized analysis justifying the detention, or lacking a meaningfulreview by an independent body. 212 Detention of groups of asylum seekerson a generalized notion that they will abscond is also an indication of arbitrarinessnoted by UNHCR. 213To further communicate its position on detention, the UNHCR hasissued the Guidelines on applicable Criteria and Standards relating to theDetention of Asylum Seekers (Guidelines), which expand and clarify thepresumption against detention articulated in the Convention and theUNHCR Executive Committee. The Guidelines declare, “The detention ofasylum seekers is . . . inherently undesirable.” 214 The Guidelines expresslyrecognize that “asylum seekers are often forced to arrive at, or enter, a territoryillegally.” 215 Detention of asylum seekers who arrive in such “anirregular manner should, therefore, not be automatic, or unduly prolonged.”216 In fact, undocumented asylum seekers are not to be consideredcriminals solely because they lack proper papers and “should not bedetained for that reason.” 217 Nor should detention “be used as a punitiveor disciplinary measure for illegal entry or presence in the country.” 218The Guidelines recognize the connection between the health andhuman rights of refugees who seek asylum, expressing particular concernfor the “traumatic experiences” of many asylum seekers, 219 the vulnerabilityof those with “special medical or psychological needs,” 220 and “the209A v. Australia, UN Human Rights Committee, Communication No. 560/1993, 3 April1997, [A v. Australia] finding a violation of article 9(1).210A v. Australia.211Torres v. Finland, UN Human Rights Committee, Communication No. 291/1988, 2 April1990, concluding that article 9(4) was violated.212UNHCR , Note on International Protection, paras. 25, 29, UN doc. A/AC.96/643, 9Aug.84 [UNHCR Detention Note].213UNHCR Detention Note.214UNHCR Guidelines, Introduction, Section 1.215UNHCR Guidelines, Introduction, Section 1.216UNHCR Guidelines, Introduction, Section 1, and Section 3 (emphasis added).217UNHCR Guidelines, Guideline 3.218UNHCR Guidelines, Guideline 3.219UNHCR Guidelines, Guideline 2.LEGAL STANDARDS 159