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with unaccompanied minor asylum seekers. They should be applied in conjunction
with the UNHCR Guidelines on Refugee Children. The guidelines recognize that
children are entitled to special care and protection and specifically state that children
seeking asylum should not be kept in detention. The guidelines address the following
issues: access to the territory for children asylum seekers; identification and initial
action; access to asylum procedures; interim care and protection of children seeking
asylum; refugee status determination; identification and implementation of durable
solutions; and cooperation and coordination between agencies.
• UNHCR Guidelines on Applicable Criteria and Standards relating to the
Detention of Asylum Seekers: These guidelines are the primary non-binding
instrument governing detention of asylum seekers. According to the UNHCR,
detention of asylum seekers is inherently undesirable, especially in vulnerable cases,
such as those involving children, disabled people, the elderly, pregnant women and
other persons with special needs. Asylum seekers should not be detained except under
the following circumstances: to verify identity; to determine the elements on which
the claim for refugee status or asylum is based; in cases where asylum seekers have
destroyed documents or used false documents to mislead authorities; or to protect
national security and public order. Regarding verification of identity, this refers to
cases where identity may be undetermined or in dispute. The exception relating to
determining the elements upon which a claim is based refers to an initial interview to
confirm that the person needs protection. It does not refer to the full interview to
determine the merits of a claim. The exception relating to false documents is applied
when the applicant has an intent to mislead authorities. Asylum seekers who are
unable to obtain documents prior to leaving their country of origin should not be
detained solely for that reason. Regarding the public security exception, this relates to
cases where there is evidence to show that the asylum seeker has a criminal
background or affiliations which pose a risk to public order or national security. The
guidelines stress that detention cannot be used to deter the entrance of future asylum
seekers. The UNHCR urges governments to use alternatives to detention first before
taking a decision to detain. These alternatives can include the following: a
monitoring or reporting requirement; the provision of a guarantor; release on bond; or
accommodation in open centres. In addition to addressing the presumption against
detention, exceptions to this presumption and alternatives, the guidelines address the
following issues: procedural safeguards; detention of persons under the age of 18
years; detention of vulnerable persons; detention of women; and conditions of
detention.
• UNHCR Executive Committee Conclusion No. 44 of 1986: Detention of Refugees
and Asylum Seekers
• UNHCR Executive Committee Conclusion No. 22 of 1981: Protection of Asylum
Seekers in Situations of Large Scale Influx
• UNHCR Executive Committee Conclusion No. 58 of 1989: Problem of Refugees
and Asylum Seekers Who Move in an Irregular Manner from a Country in
Which They Had Already Found Protection
• UN Human Rights Committee, General Comment 8, Article 9 (Sixteenth Session,
1986)
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