By definition, “foreigners in detention” are those who are detained in a State of which they are not nationals. In some countries foreigners represent a minority while in others they are by far the majority.
One must distinguish between foreigners detained for a criminal process and those for immigration related reasons:
Criminal process: foreigners are found in criminal detention facilities, having been accused of (in pre-trial detention) or convicted for crimes under the national law of the country, being detained at the request of another country pending extradition/deportation or detained/serving a sentence by an International tribunal. In some countries unauthorised or irregular entry or stay in the territory without proper documentation is criminalised and leads to imprisonment.
Administrative/immigration process due to their migration status: in some countries, violations of the immigration law (alleged breach of conditions of entry, stay or residence of a territory) leads to administrative detention (also called retention) which describes arrest and detention without charge or trial ordered by the administrative authorities rather than a court. Authorities usually detain migrants to verify their identity; during the refugee determination process; and/or when a deportation decision has been made to ensure the migrant does not abscond. Today the use of ‘immigration detention’ is growing despite the fact that it should only be used as a measure of last resort. When detention is used, it is incumbent on the State to mitigate the loss of liberty as far as possible by ensuring that the treatment and conditions are respectful of the dignity and non-criminal status of immigration detainees.
Foreigners under the criminal system are usually detained in any detention facility alongside nationals of the country, such as police stations or prisons.
Foreign detainees can be vulnerable at many levels and face heightened risks of abuse or ill-treatment, as they are outside their countries of origin or nationality, unfamiliar with the legal context or even with the applicable language. They may not have a strong family or community support network available to them. The disruption of family contact/separation of families for instance increases the risk of isolation, especially if the family lives abroad and cannot visit or communicate frequently. This can have serious psychological effects on a detainee as well as deprive them of external support (such as food, books, newspapers, etc.).
In addition to visits and other means of communications (telephone, post), authorities have a legal obligation under the Vienna Convention to notify the diplomatic or consular representatives of foreign detainees, including migrants, as long as the detainee consents to this notification.
In some context foreigners in detention are grouped by nationalities and it is not uncommon that tensions arise between national groups.
To a varying degree, foreigners will struggle with the language spoken in the place of detention. For example, one of the key procedural safeguards is that detainees are informed on arrival of the reasons why they are detainees and the process to appeal it. This right can only be fully respected if detainees are provided with the information in a language that they understand and/or that they have access to an interpreter.
States should take positive actions such as ensuring that key documents (detainees’ rights, internal rules, complaints system) are translated in various languages and making special diets available to cater for different cultural habits). Such measures mitigate the risk of isolation of foreign detainees from other detainees and staff and the daily life inside the place due to language barriers and religious and cultural practices.
These vulnerabilities and risks can be further exacerbated for persons with special needs or risks categories such as women, children, including unaccompanied or separated children, members of different ethnic/tribal/social groups detained together, victims of torture or trauma, trafficked persons, smuggled migrants, stateless persons or persons with disabilities, the elderly, LGBTI individuals, or those with urgent medical needs.
The authorities should recognise and address the specific needs of foreigners in detention. Foreign detainees should not be automatically placed in remote places of detention by simple assumption that they have no family contacts. Similarly they should not be denied leave solely because they have no home to go to. It is the authorities’ duty to ensure that foreigners are not discriminated against and that positive measures are in place to prevent discrimination.
- Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 18 December 1990
- Convention relating to the Status of Refugees, 28 July 1951
- Convention relating to the Status of Stateless Persons, 28 September 1954
- UNHCR Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention 2012
- Council of Europe, Recommendation CM/Rec(2012)12 of the Committee of Ministers to member States concerning foreign prisoners, October 2012