Legal services can play an important role to enhance the protection of detainees. This page suggests some practical tips on how lawyers can assist detained persons.
Establishing systems and networks
- Mapping of detention populations will assist effective coordination with other service providers and efficient prioritizing of assistance. This data can also be useful for advocacy purposes. Important information would include number of children, women, men, unregistered persons of concern, asylum seekers, refugees, specific vulnerabilities (e.g. health issues, pregnancy, elderly, victims of torture, unaccompanied minors and separated children).
- Referral systems are important at both the time of arrest and within detention. UNHCR and/or legal service providers sometimes provide a telephone hotline for reporting the arrest of asylum seekers and refugees. It is important to ensure clients are aware of any such hotline in case of arrest, as immediate intervention by UNHCR and/or legal representatives may in some cases successfully prevent detention. Legal representatives should also be aware of any available services and referral systems within detention, for example where clients require medical treatment or psychological support; where there are child protection concerns; or where there is an imminent threat of deportation.
Time of Arrest
- Lawyers should prepare a checklist of the key information needed from arrested clients. This can be referred to when lawyers are alerted of an arrest or detention, such as via telephone from a panicked client. The checklist might include the client’s name, telephone number, location and time of arrest, reason given for arrest, location of detention, any others arrested at same time, UNHCR file number, status (e.g. unregistered, asylum seeker, recognized refugee), any urgent health issues, any person who should be informed (e.g. family members).
- Communication is often restricted for detainees, and lawyers can provide an important link between detainees and those outside detention. It is common that where an asylum seeker or refugee is detained, family members and friends from the asylum seeker community are unable to visit due to their irregular status (e.g. no valid visa). Lawyers can facilitate communication by passing letters to detainees and updating friends and family regarding the detainee’s situation (with consent from the detainee).
- Material support and detention visits can be just as important to detainees as the provision of legal services, if not more. Often detainees lack access to essential items such as soap, sanitary items, toothbrushes, medication, and even clean drinking water, and visitors may be able to bring these items to them. Food provided in detention is often inadequate, so additional food is often extremely beneficial. Cash can also be useful for purchases within detention and telephone calls. Where men and women are detained separately, and visiting spaces are communal, it may be possible to bring separated families together during visits, providing valuable time for husbands to spend with wives, and parents with children.
- Corruption and abuse is common in detention contexts. Extortion and the demanding of bribes by officials occurs, as well as exploitation within the detainee population. Legal service providers should consider their organizational position regarding these issues, and what the appropriate advice for clients is in the particular context. Reporting mechanisms for abuse should be implemented, as well as appropriate referral procedures to deal with such complaints from clients.
- Release into the community, with or without bail or bond requirements, may be possible in some circumstances as an alternative option to detention. These options should be strongly encouraged and supported whenever possible. Where appropriate, systems should be put in place for prioritizing strategic and vulnerable cases for release, and sourcing and allocating bail/bond funds accordingly.
Testimony behind bars
If clients are detained, restricted access for legal representatives and interpreters can pose serious challenges in assisting asylum seekers to prepare their cases. Often where visits by lawyers are permitted, the time allowed for the appointment is limited, and appropriate provisions may not be provided or permitted (e.g. private meeting room, computer). This causes practical challenges and also gives rise to concerns regarding the client’s privacy and the confidentiality of their claim and any legal advice provided.
Lawyers are required to think creatively to try to overcome the challenges of providing legal advice to detainees. Strategies may include:
- Taking testimony and providing advice via telephone;
- Requesting that the client write their testimony in their own language, and pass it to the lawyer to coordinate translation and other submissions;
- Coordinate with other trusted organizations and service providers who have access to detainees, and who may be able to assist in passing documents or other information in and out of detention;
- Build relationships with other individuals or organizations that may have office space within detention that could be used for meetings or phone calls;
- If access for interpreters is not possible, consider whether other detainees may be able to assist in interpreting, if the client is comfortable with this;
- If using a communal meeting space and sensitive information is being discussed which the client does not feel comfortable speaking about within ear-shot of others, consider writing questions and answers down on paper to maintain confidentiality.