There is no common EU legislation regulating 'alternatives to detention.' Thus it is left to the EU Member States to decide how they can -- and whether or not they want to -- implement alternatives into their national legislation. Due to the different immigration and social welfare systems between each EU Member State, there cannot be one alternative that is applicable to all situations.

However, the EU Return Directive, in article 15.1, stipulates that member states should resort to detention only when "other sufficient but less coercive measures" have been used.  In a "contact committee" meeting on the Return Directive, held on 26 November 2010, the European Commission urged member states to see alternatives to detention as a "win-win scenario" for them as well as for migrants. Therefore, in the context of detention for the purpose of return, alternatives are stipulated in EU law.

THE JRS EUROPE POLICY POSITION ON ALTERNATIVES TO DETENTION

In October 2012, the JRS offices in Europe adopted a policy position on alternatives to detention. The purpose of this position is to orientate and guide JRS Europe in its reflections and analyses of alternatives, and to equip JRS Europe with the means to advocate for the implementation of alternatives in law and in practice. 

This policy position is the outcome of JRS Europe's several years of experience with visiting people in detention centres across Europe. It is also the outcome of JRS Europe's expertise on detention, based on research projects that have examined detention conditions, the effect of detention on the vulnerability of persons and how alternatives to detention affect people's lives. 

Download the full 4-page policy position:

• JRS Europe Policy Position on Alternatives to Detention (PDF, 152.22KB)

Definition of alternatives to detention

JRS Europe defines alternatives to detention as any policy, practice or legislation that allows asylum seekers and migrants to live in the community with freedom of movement, in respect to their right to liberty and security of person, while they undertake to resolve their migration status and/or while awaiting removal from the territory. 

14-point policy position

1. A presumption against detention should be laid down in law and implemented in practice.

2. States must actively seek and incorporate the expertise and experiences of asylum seekers, refugees and migrants, as well as relevant and qualified civil society organisations, when developing alternatives to detention.

3. Case resolution in a community-based, non-custodial, setting should be a standard first step in all cases, save those in which objective criteria can verify that a person poses a specific threat to public order and security.

4. Persons who are already in detention should have full access to procedures that would lead to their release into the community. Procedures for release into the community should be based upon the fulfilment of objective criteria. Persons taking part in such procedures should have access to qualified lawyers who can provide legal assistance, and counsel from relevant and qualified non-governmental organisations and staff from the United Nations High Commissioner for Refugees, if appropriate.

5. Alternatives to detention should lead to a systemic reduction in the detention estate, and not merely used to create additional capacity for detention. 

6. Alternatives to detention should not be taken as alternative forms of detention, such as electronic tagging, which may substantially restrict or completely deprive a person’s freedom of movement and right to liberty and security of person.

7. Everyone participating in alternatives to detention should receive comprehensive and individualised support at the beginning of their asylum or migration case until it is completely resolved. Persons should be immediately and completely informed in a language they understand and be empowered to take action on all possible outcomes for case resolution for the entire duration of their case.

8. Everyone participating in alternatives to detention should have access to qualified legal assistance that is free of charge from the beginning of their asylum or migration case until it is completely resolved.

9. Alternatives to detention shall provide all participating individuals and families with comprehensive reception conditions, including access to decent accommodation, medical care, psychological care, social welfare support, education and other basic needs. Reception conditions shall comply with basic human rights and should not resemble a prison- or detention-like environment.

10. Appropriate medical and psychosocial screening procedures should be implemented for all personsin alternatives to detention, in order to identify at the earliest stage particular vulnerabilities such as illnesses and signs of trauma, and appropriate measures to address them.

11. Unaccompanied children shall be placed in community-based and non-custodial settings that are age-appropriate, and which provide comprehensive and individualised support.

12. States shall give preference to voluntary compliance with a return decision for people in alternative to detention programmes who are in removal procedures.

13. Persons participating in alternatives to detention should have full access to relevant and qualified non-governmental organisations and staff of the United Nations High Commissioner for Refugees, if appropriate.

14. States shall establish bodies to regularly monitor the conditions of alternatives to detention, evaluate processes and outcomes, as well as the human, social and financial costs of such programmes. This information shall be regularly communicated to relevant national bodies in the respective member state, the European Union, and made available to the broader public.

TYPES OF ALTERNATIVES TO DETENTION

There are many ways that alternatives to detention are implemented in practice. JRS Europe's own definition underscores this fact, emphasising that the type of alternative to detention a government uses has to fit the country's particular context, and especially the needs of the migrants who are participating in the alternative. 

Most alternatives are managed and run by government actors, but some others by NGOs. The key factor that makes an 'alternative' is that it must be a community-based measure, and it must not deprive one's right to liberty. Restrictions on movement are sometimes put in place, but such restrictions should only be used after thorough assessment to ensure they are not unjustified. Furthermore any restrictions that are used should not resemble detention in any way. Below are a few examples of alternatives to detention used by governments in Europe. This list is neither exhaustive nor a ranking.

Monitoring requirements

• An individual may be released from detention on the condition that s/he reports regularly to a monitoring authority. They may be released on their own recognisance or that of a family member or NGO. Reporting requirements may be weekly or monthly. 
• An individual may be required to live at a specific residence, which they would have to report to the authorities. They would be allowed to come and go, but they wouldn't be allowed to live anywhere else.

Provision of guarantor/surety

• An individual would have to provide a guarantor who would take responsibility for ensuring attendance at hearings, official appointments and meetings. Failure to do so would result in a fine against the guarantor. 

Release on bail

• Release from detention is granted if the individual can pay a specified bail sum. A guarantor/surety may also need to be provided. 

Open centres

• Accommodation facilities for entire groups of migrants, where people are free to come and go, but usually within certain times. This maybe coupled with monitoring requirements. 

Case management

• Individuals live independently in the community and are attached to a case manager, who follows their case and helps them to seek resolution. Used in the human services sector, case management is a holistic service delivery approach tailored to individual needs. Screening, holistic assessment, case planning, intervention, ongoing review and case closure are the core elements of case management. 

JRS EUROPE RESEARCH, POLICY PAPERS, DOCUMENTATION

In December 2011, JRS Europe recently a new report entitled, From Deprivation to Liberty: Alternatives to detention in Belgium, Germany and the United Kingdom. The report is based on interviews with migrants participating in alternatives in the aforementioned countries. It presents a series of conclusions and recommendations on key factors that are needed for successful alternatives. 

JRS Europe made an official intervention at the "contact committee" meeting on 26th November, arguing that alternatives can uphold the dignity of migrants, ensure their trust and compliance, while looking to the needs of states to effect an immigration and return policy.

JRS Europe statement to the Commission-chaired "contact committee" of 26th November 2010, on national transposition of the Return Directive as regards article 15.1.

• Presentations of models on alternatives to detention from Belgium, Sweden, the UK and the EU Fundamental Rights Agency.

In 2008 JRS Europe published a paper on alternatives to detention. The paper examines the legal basis for administrative detention in the EU, the legal basis for alternatives to detention and the different forms of alternatives that are used throughout Europe and in non-European countries.

• October 2008, JRS Europe, "Alternatives to Detention" (343.92 KB)

OTHER RESEARCH & POLICY DOCUMENTATION

A September 2012 report by Matrix, a research consultancy firm, found that the UK Border Agency (UKBA) could save £377.5 million over five years by putting fewer people into detention and into community-based alternatives instead. Matrix concluded that the UKBA could instead improve its risk assessment procedures, such as by identifying people who cannot be deported within a reasonable and lawful period of detention, and will thus be released into the community anyway. Matrix estimates that while the UKBA would need to spend £5.0 million to cover the housing and living costs of migrants who live in the community, it would still be far more cost-effective than detention considering that one detention centre costs the UKBA £20 million per year.

The International Detention Coalition (IDC) is implementing a campaign on alternatives to detention, using results from research published in their latest report, There Are Alternatives: A Handbook for Preventing Unnecessary Immigration Detention. The IDC specifically advocates for the CAP model -- Community Assessment and Placement. Using the core elements of case management, the CAP model provides governments with decision-making guidelines that promote community-based alternatives. Their report has been disseminated throughout the world, and comes highly recommended for NGOs and especially governments. 

The IDC has published other papers on alternatives, including: 

• IDC paper, June 2010, "Alternatives to immigration detention (ATD): Key points for consideration
• IDC paper on alternatives to detention: the Australian experience (1.82 MB)

The UN Refugee Agency has recently published an in-depth comparative study on alternatives, specifically looking at the common factors that make alternatives successful.  The study examines pilot projects in the UK, as well as established alternatives in Belgium. This study builds on work produced in 2006, which examined the variety of alternatives in practice throughout the world.

• 2011, UNHCR, "Back to Basics: The Right to Liberty and Security of Person and ‘Alternatives to Detention’ of Refugees,  Asylum-Seekers, Stateless Persons  and Other Migrants" (by Alice Edwards)
• 2006 UNHCR study on "Alternatives to detention of asylum seekers and refugees" (1.41 MB)

The Social Policy Research Centre, based in the University of New South Wales, Australia, published two papers in November 2009 summarising existing literature on alternatives to detention, and actual cases in the US, Canada, New Zealand and the UK.  The study found: "A clear picture emerges that the more punitive approaches, in particular detention, are expensive to administer and also have deleterious effects on individuals. These negative effects appear not to be counteracted by speedier or more efficient status resolution. On the other hand the emerging evidence indicates that community-based case management interventions may offer the best response for individuals, securing dignity and facilitating improved understanding of the immigration process. [emphasis added]

• Social Policy Research Centre, University of New South Wales, "Resolving Immigration Status", part 1 and part 2

In 2006, a coalition of NGOs published a lengthy report on alternatives to detention. Here you can find country-specific information on alternatives (although national practices may have changed since the report's publication).

• 2006 NGO "Survey on alternatives to detention of asylum seekers in EU Member States" (527.08 KB)

Alternative to detention pilot projects in Glasgow and Millbank, UK, were evaluated in 2010 and 2009 respectively. Both evaluations harbor important lessons for how alternatives might -- or might not -- work well for migrants. 

• 2009 evaluation of the Millbank Alternative to Detention Pilot (by the The Children's Society and Bail for Immigration Detainees)
• 2010 evaluation fo the Glasgow Family Return Project (by the Glasgow City Council, UKBA and the Scottish Government)

Last updated: 10/04/2013