UNHCR’s Stand Against Unlawful Detention of Refugees

When a person flees persecution, war, or violence and crosses an international border, they become one of the most vulnerable individuals in the world. And yet, in many countries, the first thing that happens to them is detention – locked up, not for any crime, but simply for seeking safety. This is precisely the problem that the United Nations High Commissioner for Refugees (UNHCR) has been pushing back against for decades. UNHCR’s guidelines and standards on detention are among the most important tools in international refugee law – and understanding them is essential for anyone studying international humanitarian law, especially in the South Asian context.

Why detention of refugees is a critical legal issue 🔗

The detention of asylum seekers and refugees has become disturbingly common across many countries, and it carries serious, lasting consequences – both physical and psychological. A refugee is a person who has been forced to flee their country due to a well-founded fear of persecution based on race, religion, nationality, membership of a particular social group, or political opinion, as defined by the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. The critical point is this: seeking asylum is not a crime. And yet states often treat it as one, subjecting asylum seekers to the same detention conditions as criminal offenders.

UNHCR has consistently expressed concern about the growing use of immigration detention globally. As UNHCR spokesman Adrian Edwards stated when the agency released its updated guidelines in 2012, indefinite and mandatory forms of detention are prohibited under international law, and research shows that irregular migration is not even deterred by stringent detention practices. Detention, therefore, serves no legitimate deterrent purpose while causing enormous harm.

The legal foundation: ICCPR and the right to liberty 🔗

UNHCR’s position on detention is firmly grounded in international human rights law. The International Covenant on Civil and Political Rights (ICCPR), to which India is a signatory, guarantees in Article 9 that everyone has the right to liberty and security of person, and that no one shall be subjected to arbitrary arrest or detention. The UN Human Rights Committee – the authoritative body interpreting the ICCPR – has clarified that this provision applies to all deprivations of liberty, including immigration-related administrative detention.

This means that holding an asylum seeker purely on immigration grounds can itself constitute arbitrary detention in violation of international human rights law. The prohibition on arbitrary detention is not merely a treaty obligation – it has also crystallized as a non-derogable rule of customary international law, binding on all states regardless of treaty ratification.

UNHCR’s detention guidelines: the core framework 🔗

In 2012, UNHCR issued its updated Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention, which replaced the earlier 1999 guidelines. These guidelines represent UNHCR policy and are addressed to governments, immigration authorities, and judicial bodies making decisions about detaining people seeking international protection.

Detention as a measure of last resort 🔗

The foundational rule under UNHCR’s guidelines is straightforward: as a general principle, asylum seekers should not be detained. UNHCR’s position is that detention should be avoided and, where unavoidable, treated strictly as a measure of last resort. An individual’s status as an asylum seeker is not, by itself, a valid ground for detention. Any decision to detain must be based on a legitimate purpose, and must satisfy three cumulative requirements – it must be necessary, reasonable, and proportionate – assessed on an individual, case-by-case basis. Failure to consider less coercive alternatives can itself render detention arbitrary.

Restricted grounds for permissible detention 🔗

The guidelines do recognize limited circumstances in which states may detain asylum seekers. These include: situations where the identity or nationality of an individual cannot be established and they fail to cooperate with authorities; cases where there is a specific risk of absconding; situations where a person has destroyed travel or identity documents or used fraudulent documents to mislead authorities; and instances involving national security threats – though even here, detention must be necessary, proportionate, non-discriminatory, and subject to judicial oversight. Importantly, detention cannot be used as a punitive measure, nor as a tool to discourage people from applying for asylum or to deter future migration more broadly. Using detention for deterrence amounts to punishment for seeking refuge – a practice that violates both Articles 31 and 33 of the 1951 Refugee Convention.

Procedural safeguards against unlawful detention 🔗

UNHCR’s guidelines require that any detention must be authorised by law. Under Guideline 3, any deprivation of liberty not in conformity with national law is unlawful as a matter of both domestic and international law. This is a crucial standard: it means states must have clear, accessible, and non-arbitrary legal provisions authorising detention – vague or overly broad executive powers are insufficient. Beyond legality, the guidelines also emphasise that arbitrariness must be interpreted broadly to include not just unlawfulness, but also elements of injustice, inappropriateness, and lack of predictability.

Detained asylum seekers are also entitled to specific procedural rights, including regular access to legal counsel, relatives, and UNHCR representatives; access to medical treatment and psychological counseling; segregation of men and women, and adults and children (except from their own family members); and special protection for vulnerable groups such as pregnant women, nursing mothers, children, elderly persons, and persons with disabilities.

Alternatives to detention 🔗

A central argument in UNHCR’s framework is that alternatives to detention exist and are more effective. Community-based case management programmes, reporting obligations, supervised release, and open reception facilities have all been shown to ensure compliance with asylum procedures without resorting to imprisonment. These alternatives are also significantly more cost-effective than detention. UNHCR’s Beyond Detention 2014-2019 global strategy was specifically designed to support governments in making detention an exceptional rather than routine practice, working with states to develop and scale up such alternatives.

The South Asian gap: national laws and the detention problem 🔗

The challenge with UNHCR’s guidelines is that they are policy instruments – they are not automatically enforceable as binding law unless incorporated into national legal frameworks. This is where South Asia, and India in particular, presents a significant gap.

India is not a party to the 1951 Refugee Convention or its 1967 Protocol and has no dedicated domestic asylum law. In the absence of a national refugee law, refugees in India are governed by colonial-era legislation – primarily the Foreigners Act, 1946 and the Passport Entry into India Act, 1967 – which classify undocumented refugees as “illegal migrants” and grant broad executive powers of detention and deportation. These laws do not distinguish between an economic migrant and a person fleeing genocide.

The practical consequences are severe. Rohingya refugees in India – many of whom hold UNHCR refugee certificates – have been detained under the Foreigners Act even after completing their sentences, kept indefinitely in detention centres without any clear legal basis. The case of Lily Begum, an 82-year-old Rohingya refugee who completed her sentence in August 2020 but continued to be held at the Silchar Detention Centre, illustrates the arbitrary nature of such prolonged detention. UNHCR refugee cards, while technically recognized by some government bodies, provide only informal protection against arrest – they carry no legally enforceable status under Indian law.

Indian courts have offered some constitutional protection. In Louis De Raedt v. Union of India, the Supreme Court held that non-citizens are entitled to the protection of Articles 14 and 21 of the Constitution, meaning the right to equality and the right to life and personal liberty extend to refugees. Article 21 of the Constitution guarantees that no person shall be deprived of their life or personal liberty except according to procedure established by law. However, constitutional protection alone, applied through ad hoc judicial intervention, is no substitute for a comprehensive national refugee law that systematically incorporates UNHCR’s detention standards.

Why national incorporation of UNHCR standards matters 🔗

UNHCR’s guidelines repeatedly emphasise that the right framework for preventing unlawful detention must be embedded in national law. Without this, protections remain discretionary, inconsistent, and dependent on the goodwill of executive authorities. The absence of a domestic asylum law in India – and in most South Asian states – means that the UNHCR’s carefully developed standards on necessity, proportionality, individualized assessment, and alternatives to detention have no formal legal anchor in national practice.

Scholars and human rights organisations have long argued that India and other South Asian countries should enact national refugee legislation that incorporates international standards, including UNHCR’s detention guidelines. Such legislation would need to: define who qualifies as a refugee with clarity; prohibit detention as a first-resort measure; require individualized assessment before any deprivation of liberty; mandate judicial review of all detention decisions; and establish alternatives to detention as the default approach. UN Special Rapporteurs have also urged India to end arbitrary detention of Myanmar nationals, allow independent access to detention sites, and engage with UNHCR to streamline refugee registration and asylum determination.

The UNHCR’s mandate to prevent unlawful detention is ultimately a mandate to make international human rights law real in the lives of the most vulnerable. Guidelines are a starting point – but their translation into enforceable national law is what determines whether a refugee’s right to liberty is protected in practice or only on paper.

What do you think? Given that India is a signatory to the ICCPR, which explicitly prohibits arbitrary detention of all persons including asylum seekers, should the absence of a national refugee law be treated as a gap that courts must fill through constitutional interpretation – or does it demand urgent legislative action? And if states routinely detain refugees despite UNHCR guidelines, what enforcement mechanisms could make those guidelines more than advisory?

References

1. https://www.unhcr.org/what-we-do/protect-human-rights/asylum-and-migration/detention
2. https://www.unhcr.org/about-unhcr/overview/1951-refugee-convention
3. https://www.unhcr.org/us/news/stories/unhcr-concerned-detention-asylum-seekers-releases-new-guidelines
4. https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights
5. https://www.refworld.org/policy/legalguidance/unhcr/2012/en/87776
6. https://www.fortifyrights.org/mya-inv-2025-05-12/
7. https://www.refugeesinternational.org/reports-briefs/a-lifetime-in-detention-rohingya-refugees-in-india/
8. https://www.jurist.org/commentary/2025/06/from-haven-to-hostility-indias-changing-immigration-policy-on-rohingya-refugees/
9. https://www.globaldetentionproject.org/countries/asia-pacific/india