Alternatives to detention

Immigration detention is not the solution: with support and engagement people can resolve their cases in the community, without harmful and costly detention.

What are alternatives to detention?

Under international law, immigration detention must only be used as a last resort, after alternatives to detention have been explored in each individual case. The term ‘alternatives to immigration detention’ (ATD) does not have an established legal definition, nor is it a prescriptive concept.

As a working definition, the European ATD Network understands ATD to be: “any law, policy or practice by which persons are not detained for reasons related to their migration status”. This expansive definition incorporates a range of options available to a State to avoid detention. Understood in this broad sense, ATD respond to the question: how can governments achieve legitimate migration governance goals without the use of detention?

Scope to expand the range of alternatives in Europe

European governments have made limited use of ATD to date, despite the obligation in EU law to apply less coercive measures. Where ATD have been applied, the focus has often been on “traditional” or “enforcement”-based alternatives, which apply restrictions and conditions to control and keep track of migrants (e.g. reporting requirements, bail, surrender of documents). These allow governments to track individuals and seek to deter non-compliance but have generated little evidence of effectiveness when it comes to engagement. There is therefore the scope and need to shift the focus to look at alternatives that actually work, in terms of achieving government objectives around compliance and case resolution as well as respecting rights.

Engagement-based alternatives

A growing body of international research, best practice and evidence, shows that the most effective ATD are those that engage migrants in immigration procedures, in particular though tailored case management. This involves a social work approach, empowering and building trust with migrants to work towards resolution of their case, thus achieving better results for both governments and the migrants involved.

Global comparative research, looking at 250 examples of alternatives to detention in 60 countries, found that such alternatives achieve very high compliance rates of between 70 and 99%, and higher levels of case resolution and voluntary return, at a fraction (less than 20%) of the cost of detention.

They work because people are more likely to stay engaged and comply with immigration requirements, including negative decisions on their status, when they feel they have been through a fair and efficient process, and have been able to explore all migration outcomes. In contrast, approaches based on coercion and detention can encourage migrants to resist perceived injustice, and decrease their ability and motivation to cooperate with government requirements.

Lack of European practice and learning

The European Commission has recognised that “early intervention and holistic case management focused on case resolution” has been proven to be successful as an alternative to detention. In its revised Return Handbook (2017), it recommends States aim at: “A systematic horizontal coaching of all potential returnees, covering advice on possibilities for legal stay/asylum as well as on voluntary/enforced return from an early stage (and not only once forced removal decisions are taken).”

Yet very few Member States have implemented case management-based alternatives, meaning there is a lack of evidence and models in Europe. Limited monitoring and evaluation has left a gap in knowledge about factors that contribute to their effectiveness. ATD remains an abstract concept for many European governments and civil society stakeholders alike. This has been a key barrier in terms of expansion of alternatives which can really reduce the use of immigration detention in the region.

Making alternatives to detention a reality

Opportunities for governments

Governments can build on promising practice emerging in Europe and other parts of the world. This can include developing small case management-based pilot projects working with defined categories of migrants, to test models and adjust approaches to meet the needs of their specific national contexts. The results of qualitative and quantitative evaluation can guide further development and expansion of effective alternatives to detention. Cooperation with civil society on alternatives can be a way to build on NGO capacity and expertise in case management, develop State-NGO partnerships and work together towards fairer and more effective immigration systems.

Opportunities for civil society

Civil society and communities have a crucial role to play in developing alternatives that can reduce the use of immigration detention. Civil society organisations already provide structured services to migrants in Europe and have a strong focus on building trust and rapport with their clients. By getting involved in designing, piloting and developing alternatives, NGOs can enable individuals to avoid detention, while influencing the shape and tone of the wider implementation of alternatives – to build systems that rely on engagement rather than enforcement and detention.

European ATD Network

The European ATD Network is collectively gathering evidence and learning to support NGOs and governments to develop effective alternatives to detention based on case management. Please get in touch if you would like more information about our projects, models and findings.