Read Resolving Immigration Status, Part 1: Review of the International Literature text version

Resolving Immigration Status, Part 1: Review of the International Literature

Dr. Susan Banki Professor Ilan Katz

Report for: The Department of Immigration and Citizenship Social Policy Research Centre University of New South Wales November 2009

RESOLVING IMMIGRATION STATUS: A review of the international literature

Table of Contents

Acknowledgments.................................................................................................... iii Abbreviations .......................................................................................................... iv 1 Executive Summary ........................................................................................ 1

1.1 1.2 1.3 Background .............................................................................................................. 1 Methods ................................................................................................................... 1 Findings ................................................................................................................... 1

Health Outcomes of Detention ............................................................................................ 1 Legal Assistance ................................................................................................................. 2 Video Teleconferencing (VTC) .......................................................................................... 2 Visa and Immigration Regimes ........................................................................................... 2 Return and Removal Policies .............................................................................................. 2 Conditional Release ............................................................................................................ 2 Case Management Models .................................................................................................. 3

1.4

Conclusion ............................................................................................................... 3 Definition of Terms.................................................................................................. 5 How to Evaluate Immigration Resolution Mechanisms? The Question of Effectiveness ........................................................................................................... 6

Efficiency ............................................................................................................................ 6 Human rights obligations .................................................................................................... 7

2

Background to the Study ................................................................................ 5

2.1 2.2

3 4 5

Methodology ...................................................................................................11 Overview of the Literature.............................................................................14 Key Studies .....................................................................................................17

5.1 5.2 United States Commission on International Religious Freedom (USCIRF), Report on Asylum Seekers in Expedited Removal (February 2005) ......................17

Effects on Individuals ....................................................................................................... 17

Ophelia Field/UNHCR, Alternatives to Detention of Asylum Seekers and Refugees (April 2006) ...........................................................................................19

Effects on Individuals ....................................................................................................... 20 Legal Obligations .............................................................................................................. 20 Compliance and Costs ....................................................................................................... 21

6

Mechanisms for Status Resolution ................................................................23

6.1 Detention ................................................................................................................23

Health and Detention ........................................................................................................ 23 Mental Health and Detention ............................................................................................ 25 Summary ........................................................................................................................... 28

6.2

Legal Assistance ....................................................................................................28

Vera Institute of Justice, Legal Orientation Program: Evaluation and Performance and Outcome, Measurement Report, Phase II (May 2008)............................................... 29 Other Types of Legal Assistance ...................................................................................... 32 Summary ........................................................................................................................... 33

6.3 6.4

Video Teleconferencing (VTC) .............................................................................34

Summary ........................................................................................................................... 36

Visa and Immigration Regimes .............................................................................36

Temporary Visas ............................................................................................................... 36 Dispersal Policies .............................................................................................................. 39 Provision of Assistance ..................................................................................................... 40 Employment ...................................................................................................................... 42 Summary ........................................................................................................................... 42

6.5 6.6

Return and Removal Policies .................................................................................42

Summary ........................................................................................................................... 46

Supervised Release ................................................................................................46

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RESOLVING IMMIGRATION STATUS: A review of the international literature

Vera Institute of Justice, Testing Community Supervision for the INS: An Evaluation of the Appearance Assistance Program (AAP) (August 2000) ......................................... 46 Other Supervised Release Programs ................................................................................. 51 Summary ........................................................................................................................... 51

6.7 6.8 6.9

Release on Bail ......................................................................................................52

Summary ........................................................................................................................... 52

Unconditional Release ...........................................................................................53 Case Management Models .....................................................................................53

Community-based Interventions ....................................................................................... 53 Administrative Case Management .................................................................................... 56 Summary ........................................................................................................................... 57

7 Deterrence ......................................................................................................58 8 Conclusion ......................................................................................................60 References ................................................................................................................63

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RESOLVING IMMIGRATION STATUS: A review of the international literature

Acknowledgments

We owe a debt to many individuals and organisations that assisted with the writing and production of this report. Alison O'Connor assisted with the research and writing of the literature review. She and Victoria Vu contributed generously to the UK case study. Denise Thompson assisted in writing much of the Australia case study. Duncan Aldridge helped with layout and formatting. Several individuals provided expertise and commented on excerpts of early drafts. We thank Alexander Betts, Janet Cleveland, Mark Hetfield, Martin Jones, Richard Lumley, Jane McAdam and Grant Mitchell. We received information and assistance from many organisations, both within and outside of Australia. We would like to acknowledge Amnesty International Australia, Asylum Seeker Centre, Australian Human Rights Commission, Australian Red Cross, Refugee Council (UK), Centre for Refugee Research at the University of New South Wales, Hotham Mission, International Detention Coalition, International Organization for Migration, Institute for the Study of International Migration at Georgetown University, Refugee Council of Australia, St. Vincent de Paul, Swedish Red Cross, UNHCR Canberra and the Women's Refugee Commission. We also consulted with the following overseas government departments, which provided information in a timely and helpful manner: the Canadian Border Services Agency, the New Zealand Department of Labour, and the UK Border Agency. Finally we are grateful to members of the Department of Immigration and Citizenship and the Council for Immigration Services and Status Resolution, who provided invaluable assistance and guidance throughout the project. In particular we would like to thank Bob Correll, Jackie Wilson, Paris Aristotle, Ray Funnell, Harry Minas, Jan Tankiang and Kees van der Spek. While we appreciate the assistance of many, all errors are our own.

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RESOLVING IMMIGRATION STATUS: A review of the international literature

Abbreviations

AAP ASP AUD BID BVE CCP DIAC DHS ECRE EU HRF ICCPR ISAP ICE INS IOM ISAP LOP NAM NGO OHCHR PHR PHV PTSD TBP TPV UKBA UNHCR USCIRF VARRP VTC Appearance Assistance Program (US) Asylum Seeker Program (Australia) Australian dollar Bail for Immigration Detainees (UK) Bridging Visa E (Australia) Community Care Pilot (Australia) Department of Immigration and Citizenship (Australia) US Department of Homeland Security European Council on Refugees and Exile European Union Human Rights First International Covenant on Civil and Political Rights Intensive Supervision Appearance Program (US) US Immigration and Customs Enforcement US Immigration and Naturalization Service International Organization for Migration Intensive Supervision Appearance Program (US) Legal Orientation Program (US) New Asylum Model (UK) Non-government organisation Office of the High Commissioner for Human Rights Physicians for Human Rights Permanent Humanitarian Visas (Australia) Post Traumatic Stress Disorder Toronto Bail Program (Canada) Temporary Protection Visas (Australia) UK Border Agency United Nations High Commissioner for Refugees US Commission on International Religious Freedom Voluntary Assisted Return and Reintegration Programme (UK) Video Teleconferencing

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RESOLVING IMMIGRATION STATUS: A review of the international literature

1

1.1

Executive Summary

Background

In recent years, Australia's Department of Immigration and Citizenship (DIAC) has considerably reformed its policies concerning non-citizens with unresolved status. In order to ensure that continuing reforms are informed by empirical research and current international practices, DIAC commissioned a two-part report examining effective and just mechanisms for resolving the status of non-citizens. Part 1 is a literature review of empirical research on the effectiveness of various mechanisms for resolving status and the effects on individuals of such measures. Effectiveness relates to the usefulness of a particular policy or intervention and encompasses several factors: · · · · · 1.2 the financial cost of status resolution, both to the government and to other involved agencies (such as service providers); the speed of the status resolution process (including length of process and number of appeals); compliance of non-citizens with laws (including appearance at hearings and voluntary departure); the accurate resolution of cases (arguably related to the number of appeals); and the minimisation of harm to non-citizens. Methods

The process of compiling and reviewing empirical studies on the mechanisms for resolving immigration status was iterative, as initial research informed later searches. To locate the relevant empirical literature on this topic, an extensive on-line search was conducted. Both academic databases and the 'grey' literature were searched thoroughly. The latter included: reports from advocacy and human rights organisations; evaluations of specific programs; and material from research and funding bodies. Personal contact was made with key lead researchers to ensure that no recent material was overlooked. The review sought out studies with a reasonably robust empirical methodology. In many instances these were not available, and the review identifies the lack of research in these areas. 1.3 Findings

Health Outcomes of Detention This is the best researched area in the review. Overall, despite a number of methodological limitations in several studies, the literature on the consequences of detention on detainees offers a clear message. Detention has a negative impact on both the physical and the mental health of a population that is already vulnerable.

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RESOLVING IMMIGRATION STATUS: A review of the international literature

Legal Assistance Despite a consistent finding that legal assistance improves the quality of the status resolution process, many questions still remain. First, there is conflicting evidence about whether legal representation speeds or slows the current status resolution process, and the conditions that will influence the speed of the outcome one way or the other. Second, legal assistance programs have been shown to increase or decrease financial costs, depending on how these costs are measured. Third, there is insufficient research to determine the impact of legal assistance on compliance. Video Teleconferencing (VTC) There are consistent, but sparse, findings on the negative impacts of VTC on the quality of immigration (and other types of legal) proceedings. Despite this, it appears as though the use of VTC is set to become more prevalent, because there are as yet unsubstantiated claims that VTC lowers costs and speeds the process of immigration proceedings. Thus, studies which compare costs and speed of VTC as opposed to face-to-face interviewing are most in need. Visa and Immigration Regimes A relatively slim literature, much of it from Australia, has studied the effects of temporary visas, dispersal, material assistance, and the availability (or lack) of employment on recipients. The negative effects associated with restrictive policies of this kind include mental, emotional, social and economic problems. These studies, however, generally fail to establish causality because in many studies the effects of policies could have been the result of other factors, such as prior circumstances. Furthermore, there is very little information available on how existing programs affect speed, compliance and costs. While extant findings should not be ignored, future research is recommended that: 1) studies speed, compliance and costs; 2) utilises control groups; and 3) makes comparisons among programs. Return and Removal Policies The highly charged topic of removals has thus far been accompanied by a limited number of high quality reports whose main messages are that: 1) return programs have numerous logistical, ethical, and cost challenges; and 2) conditions in the country of return are the most important factor in determining successful return policies. These elements point to the particular need for future research on structuring removals that ensure safe and successful integration in the country of return. Conditional Release A very limited number of empirical reports indicate that conditional release programs, such as supervised release or release on bail, provide an effective mechanism for ensuring relatively high compliance and reducing financial costs significantly. There are two caveats to these findings. First, the only major study produced on supervised release indicates that its success is dependent on the type of the participant. More research is required to determine the factors that make for successful releasees, such as flight risk. Second, conditional release will only improve effectiveness if it is applied to those who otherwise would have remained in detention, rather than to those who would have been otherwise released unconditionally. No studies were found that explore the effects of such programs on the speed of status resolution. 2

RESOLVING IMMIGRATION STATUS: A review of the international literature

Case Management Models One mechanism for resolving immigration status employed by several countries is case management, broadly described as programs that provide non-citizens individualised attention and forms of assistance. Different case management models vary in their content and scope, but all include some combination of material, social, legal and psychosocial assistance. Case management can be broadly placed into two categories: · · Community-based models, which rely on community organisations and networks to create ties with the community; Administrative models, which employ case workers to oversee the administration of assistance and status resolution.

There is currently very limited evidence of the effectiveness of these approaches, but early indications suggest strongly that community-based case management may be able to resolve many of the issues for status resolution, and that optimal models may provide the best combination of human rights, cost effectiveness, speed and compliance. However there is an urgent need for further rigorous empirical research on case management models, particularly given that Australia has adopted this approach to status resolution. In particular, the development of longitudinal studies are recommended that would compare different models of case management and their effects on compliance, speed, cost and their effects on individuals. 1.4 Conclusion

This review reported on the literature relating to the range of mechanisms that have been developed to resolve the immigration status of non-citizens in host countries. These mechanisms include detention, supervised release, temporary visas, legal and practical assistance and case management. In each case the review has attempted to address the issues raised by these mechanisms including their efficiency and costs, the impact on asylum seekers and other non-citizens, the human rights implications of the mechanisms, and their effect on compliance levels. Despite considerable methodological challenges for undertaking empirical research in this area, there are lessons to be learned from the literature. 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. In addition, it is the most appropriate intervention to fulfil human rights obligations. Research on compliance, where available, supports the claim that this intervention also reaches high compliance levels, particularly before the removal decision. It also appears that case management approaches are likely to be more cost effective than detention and other restrictive interventions, although a proportion of the costs may be transferred from the government to the NGO sector.

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RESOLVING IMMIGRATION STATUS: A review of the international literature

Inevitably most of the research literature focuses on evaluations of specific programs or interventions, mainly small scale pilot programs. There is very little information that compares different interventions in any dimension other than compliance levels, and even these data are rather patchy and mainly confined to the US. However, the literature acknowledges that a comprehensive policy for dealing with non-citizen status will inevitably contain a range of interventions, including some that are more restrictive. None of the literature addresses the most appropriate combination of different interventions and policies. The range of policies will also inevitably differ considerably between countries, because of huge variations in the immigration context in different countries. The most glaring example is the sheer numbers of asylum seekers and unauthorised non-citizens in the US and the UK, which are several orders of magnitude greater than those in Australia, and therefore the policy responses will inevitably vary. Despite these caveats it does appear that a status resolution policy based around some form of community-based case management represents an effective approach in terms of compliance, costs and securing human rights. This supports the decision of the Australian Government to offer such measures within a suite of broader options. More research is necessary, however, to determine if certain aspects of this approach (exogenous factors such as host country refugee recognition rate; endogenous factors such as the type of claimant) account for effective levels of compliance. There are a number of important research programs that should be undertaken in this area including rigorous evaluations of various interventions such as legal assistance and case management, comprehensive longitudinal studies of different cohorts of noncitizens and more in-depth international comparisons. An important but greatly underused source of information is the administrative data already collected by immigration departments around the world. If these data were appropriately harmonised and shared across countries and then released to researchers, it could provide a cost effective way of addressing a number of the research issues raised in this report.

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RESOLVING IMMIGRATION STATUS: A review of the international literature

2

Background to the Study

In recent years, Australia's Department of Immigration and Citizenship (DIAC) has considerably reformed its policies concerning non-citizens with unresolved status. In order to ensure that continuing reforms are informed by empirical research and current international practices, DIAC commissioned a two-part report examining effective and just mechanisms for resolving the status of non-citizens. The first part, a literature review, locates and reviews empirical research on the effects on individuals of various mechanisms and the effectiveness of such measures. The second part, a critical comparative case study, examines the contexts, policies and models of immigration resolution in six countries: Australia, Canada, New Zealand, Sweden, the United Kingdom (UK) and the United States (US). 2.1 Definition of Terms

For the purposes of consistency and clarification, we begin by defining several terms that are used throughout the report. Mechanisms to resolve status describe interventions, policies or legislation that relate to the immigration resolution of non-citizens. They may be state- or otherwise-funded and they may include policies, such as the criteria for detention, or programs, such as detention itself. They may describe initiatives that reform national policy, such as the case management model, or they may describe singular local programs that have not been replicated, such as asylum shelters. Non-citizens with unresolved status refers to all individuals who do not have formal authorisation to be in a country, and includes people who have crossed a border illegally, non-citizens who have committed a crime and had their visa cancelled, workers or students who have overstayed their visas (overstayers) or those seeking protection through asylum or other means (protection claimants). Asylum seeker refers to a particular category of protection claimant who seeks protection based on a 'well-founded fear of persecution' due to his/her race, religion, nationality, membership in a social group or political opinion.1 In some countries, non-citizens with unresolved status are called aliens. We avoid this term, which, some argue, has negative connotations (Bacon, 2008). Undocumented migrants refer to those non-citizens whom the government cannot count precisely. Although the sub-categories within this group are not universally accepted, they generally include those who crossed a border illegally, overstayers and individuals who absconded before removal hearings/deportation and are thus believed to still be in the country. The number of undocumented migrants in a country is, of course, inherently uncertain since these individuals want to remain under the radar of the government. A refugee is an individual whose claim for asylum status has been granted, and therefore is no longer considered a non-citizen with unresolved status.

1

This definition comes from the Refugee Convention (1951) and is used internationally to determine criteria for asylum.

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RESOLVING IMMIGRATION STATUS: A review of the international literature

Host country refers to the country where the non-citizen is currently located, whereas country of origin or home country refers to the country from which the non-citizen has originally departed. The country of return describes the country to which a noncitizen is returned; this may or may not be the original home country. Compliance is an overall term describing the extent to which non-citizens comply with the conditions or rules governing their status. Specific measures of compliance include appearance rates, the percentage of individuals who appear for a particular set of hearings, whether initial, intermediate or final (deportation) hearings, and voluntary departure rates, the percentage of individuals who comply with removal orders and voluntarily depart the host country. The converse, absconding rates, describes the percentage of individuals who fail to appear for a given set of hearings. 2.2 How to Evaluate Immigration Resolution Mechanisms? The Question of Effectiveness

Both sections of the report examine, where available, the effectiveness of relevant models and mechanisms. A working definition of the term is therefore necessary. Effectiveness relates to the usefulness of a particular policy or intervention and encompasses several factors, but the term can be broadly defined by two elements: 1) the efficiency of the mechanism; and 2) the extent to which it adheres to moral and human rights obligations. Both are considered below. Efficiency Discussions of efficiency are present in immigration and refugee policy discourse, and, increasingly, within academic analyses. The term is invoked by government officials to examine issues surrounding speed and cost, while advocates use it to refer to ways to maximise protection and minimise vulnerability. This leads to inevitable disagreements, with some charging that efficiency sacrifices justice for speed (HRF, 2004: 209) and others arguing that efficiency will clear the courts for more meritorious cases (USCIRF, 2005b: 241). The term 'efficiency' carries normative weight, because, as Gibney notes, liberal democratic countries will balance the cost of asylum policies against the pressures/desire to respond to humanitarian needs (2004). Where an agreed-upon definition of efficiency has not been established in regard to the evaluation of policies, the result may be a delegitimisation of the implementing government (or another implementing authority) (Dahlstrom, 2007). Thus, an examination of the term is critical. Employing types of efficiency originally utilised by Betts (2006) in a model applied to the global refugee regime, efficiency can either be allocative ­ maximising the wellbeing and dignity of non-citizens with unresolved status subject to state constraints on costs ­ or productive ­ minimising the cost to the state subject to humanitarian concerns for non-citizens. In the immigration resolution model, there is a third component: public security, which, depending on the country, may be held constant (meaning that the government will not reduce security at any cost). The efficiency model described above simply demonstrates that stakeholders have different understandings of efficiency because they assign competing values to the 6

RESOLVING IMMIGRATION STATUS: A review of the international literature

elements within the model. Decisions about which values are more important are beyond the scope of this research, and so, therefore, are conclusions about the 'most efficient' practices. Instead, we take apart the elements that constitute efficiency and study them separately. The elements that we attempt to study here include: · · · · · the financial cost of status resolution, both to the government and to other involved agencies (such as service providers); the speed of the immigration process (including length of process and number of appeals); compliance of non-citizens with laws (including appearance at hearings and voluntary departure); the accurate resolution of cases (arguably related to the number of appeals); and the minimisation of harm to non-citizens.

These elements yield different quantities of certain types of data. There is very little empirical research, for example, on the speed of the immigration process, while the costs of certain interventions (such as detention) have been better cited. Likewise, the qualitative research focuses primarily on the impacts to individuals and less on the question of security. Some elements are somewhat subjective, such as the 'accurate' resolution of cases. Others, including appearance rates, rely on numerical data and are more objectively measured. Even those in the latter category, however, are subject to interpretation, and there is not a totally consistent definition of 'appearance rate'.2 Until a great deal more research is done in this area, information about the elements above for any given country will remain incomplete. Human rights obligations The second aspect of effectiveness is adherence to human rights obligations, whose applicability in the context of this report is linked to three themes: the right to liberty and security of person (in this case, the right not to be detained arbitrarily); the right to freedom of movement; and the right to a fair trial. The right to liberty and security of person Article 3 of the Universal Declaration of Human Rights (hereafter UDHR) asserts that all people have a 'right to liberty and security of person' (UNGA, 1948). Article 9 further prohibits arbitrary arrest, detention or exile.3 The UDHR applies universally,

2

Statistics can be misleading or false. For example, it has been shown that some government statistics exaggerate the rate of absconding. See Methodology section, below. Non-arbitrary detention, and non-arbitrary treatment in general, comes from the notion that 'limitations on rights must not only be prescribed by law (the first line of defence against arbitrary treatment), but must only be such as are necessary in a democratic society, to

3

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RESOLVING IMMIGRATION STATUS: A review of the international literature

regardless of a person's legal status (Weissbrodt, 2008: 125). Thus, regardless of whether an individual is an asylum seeker or a citizen, detention is only justified if states have non-arbitrary reasons for doing so. These principles are contained in binding form in article 9 of the International Covenant on Civil and Political Rights (hereafter ICCPR), a treaty that Australia has ratified (UNGA, 1966a). Australia is bound as a matter of international law to respect its obligations under this treaty and to ensure that any person whose rights are violated has access to an effective remedy (1966a: article 2(3)). Similar provisions are contained in regional human rights treaties.4 Australia has also ratified the UN Convention Relating to the Status of Refugees (hereafter, Refugee Convention) whose article 31 prohibits penalising asylum seekers based on the manner of their arrival into the country from which they are seeking protection (UNHCR, 1951). Interpreting the ICCPR, the UN Human Rights Committee set out the conditions for non-arbitrary detention in its widely cited 1997 decision A. v. Australia (HRC, 1997). The Committee held that even if individuals enter a country illegally, for detention to be considered non-arbitrary, their cases must be subject to individual and periodic review. Further, there must be reasonable arguments for continuing to keep them in custody, such as 'likelihood of absconding and lack of cooperation' (HRC, 1997).5 The right to challenge detention in a court with effective review and that has the power to order release is also necessary (Field, 2006: 9). In considering Australia's policy of mandatory detention, it has been noted that detention may be considered arbitrary if: it is a blanket policy with no consideration of individual circumstances; it cannot be demonstrated that there were no less restrictive means for achieving particular government outcomes; the length of detention cannot be justified in an individual's case; and the opportunities for review of the lawfulness of the decision are either non-existent or inadequate (McAdam and Garcia, 2009: 15). With respect to children, article 37(b) of the UN Convention on the Rights of the Child prohibits the deprivation of any child's liberty unlawfully or arbitrarily, regardless of the child's legal status (UNGA, 1989). It provides the further limitation that detention of any child may be used only as a measure of last resort and for the shortest appropriate period of time. Article 22(1) of the UN Convention on the Rights of the Child imposes a positive obligation on state parties (including Australia) to take appropriate measures to ensure that a child who is seeking refugee status, whether

protect national security, public order, and the rights and freedoms of others' (Goodwin-Gill, 2003: 228).

4

Other international and regional documents that prohibit arbitrary detention include: article 5 of the European Convention on Human Rights (Council of Europe, 1950); article 2 of the Protocol No. 4 to the European Convention on Human Rights (Council of Europe, 1950); article 7 of the American Convention on Human Rights (OAS, 1969); and article 6 of the African Charter on Human and Peoples' Rights (OAU, 1981). Field notes that nowhere in international law is prevention of absconding specified as a legitimate justification for detaining an asylum seeker, but that it is closely related to ensuring availability for removal, and thus used widely to detain non-citizens (Field, 2006: 161, ftn. 111).

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RESOLVING IMMIGRATION STATUS: A review of the international literature

unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of his or her human rights. The right to freedom of movement Detention and other restrictions on movement lie on a continuum, both in practice and in terms of human rights obligations. While there is a difference between the two, the restrictions are defined by their degree and intensity (Goodwin-Gill, 2003: 220). Article 13 of the UDHR asserts that everyone has the right to freedom of movement and residence within state borders. Similarly, article 9 of the ICCPR protects the right to movement, unless national security, public order, public health or the freedoms of others are threatened as a result. Article 12(1) of the African Charter of Human and Peoples' Rights likewise grants freedom of movement and residence to every lawabiding individual within the state borders of a State Party (OAU, 1981). Although much of the analysis on the right to freedom of movement centres on the rights for those lawfully residing in a country,6 protection for the freedom of movement of refugees and asylum seekers is found in the Refugee Convention (1951). Article 26 contains the general rule that refugees lawfully in the territory have the right to move freely within it and choose their place of residence. Article 31, which applies also to asylum seekers, states that where a person is unlawfully in the country, then any restrictions on movement must be 'necessary' and only applied until their status is regularised or they are admitted to another State.7 Non-arbitrary treatment as it relates to freedom of movement rests on the reasonable understanding that restrictive measures, whatever they are, are proportional to their intended objective (Field, 2006: 9, citing HRC, 1997). The right to a fair trial and due process of law Countries have varying procedures for resolving immigration status, and a common critique of these processes is in instances when non-citizens are subject to administrative decisions with no independent oversight, either in the application to detain or release, or in the application of whether or not to permit residence in the country. Article 32 of the Refugee Convention (1951) requires that decisions about expelling refugees be taken in accordance with due process of law and the right to appeal.

6 7

For a brief discussion of what constitutes lawful, see Field (2006: 5, ftn 17). Paragraph 28 of The Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees further notes that refugee status exists prior to the recognition of a person's claims. That is, a person does not become a refugee upon formal determination of status, but, according to international law, becomes a refugee as soon as s/he fulfils the definition in the 1951 Convention of fleeing a `well-founded fear' of persecution based on race, religion, nationality, membership in a social group, or political opinion (UNHCR, 1992). See also Goodwin-Gill and McAdam (2007: 384ff).

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RESOLVING IMMIGRATION STATUS: A review of the international literature

Articles 10 and 11 of the UDHR (1948) and article 14 of the ICCPR (1966) both state that individuals have the right to a fair trial, regardless of citizenship. The right for migrant workers to a trial is stated in article 16 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (UNGA, 1990).

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RESOLVING IMMIGRATION STATUS: A review of the international literature

3

Methodology

The research for this literature review was conducted in tandem with comparative case studies (see Part 2) from June to August 2009. One full-time researcher and two part-time researchers split their time between both projects. The process of compiling and reviewing empirical studies on the mechanisms for resolving immigration status was iterative, as initial research informed the years of the review and yielded new search terms. Years of the Review Because the immigration enforcement regime has experienced significant changes, particularly in the aftermath of September 11, 2001, it was decided to generally limit the review to research published in or after 2000. Studies prior to the year 2000 were only included if they were seminal reports on which later reports built. Search Terms Search terms included 'immigration', 'refugees', 'asylum seekers', 'unresolved immigration status', 'unresolved immigration', 'immigration status', 'detention', 'alternatives to detention', 'visas', 'case management', 'community detention', 'temporary protection' and 'administrative detention'. Later, as different mechanisms emerged in the literature, specific interventions were searched, such as 'legal representation' and 'supervised release'. When searches became unwieldy, additional parameters were set including relevant countries or regions, such as the European Union, or the United States. Institutions within these countries were also used as qualifiers on searches, such as the Home Office, to refine searches. Search Locations Searches followed distinct strands based around where the literature was found. The first areas for searches were in the 'grey' literature. Searches were conducted through the archives of human rights research and advocacy organisations such Human Rights Watch, Amnesty International, Human Rights First, Physicians for Human Rights, International Detention Monitor, Detention Watch Network and the International Detention Coalition, among other organisations. The United Nations document archive incorporating the Office of the UN High Commissioner for Refugees (UNHCR) and the Office of the High Commissioner for Human Rights (OHCHR) were also searched thoroughly. Bibliographies from these reports were compared and resources tracked. There were several peak bodies or specialist research centres that provided useful lists of resources and research publications. Some of these centres include the Information Centre about Asylum and Refugees in the UK, the Centre on Migration, Policy and Society and the Centre for Research and Analysis of Migration in the UK. Other important centres and organisations included in the search were the International Organization for Migration (IOM), the Migration Policy Institute in the US and the Migration Research Unit in the UK.

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RESOLVING IMMIGRATION STATUS: A review of the international literature

The academic journals were targeted. Likely journals were selected, including but not limited to International Migration Review, the Journal of Refugee Studies, the Human Rights Law Review, the European Journal of Human Rights, the Australian Journal of International Affairs and Georgetown Immigration Law Journal. Other non-peer reviewed, but highly respected journals and working paper series included in the search were Forced Migration Review, New Issues in Refugee Research and Refugee Survey Quarterly. Similar search terms to those used in the grey literature were used. Again, the bibliographies of these resources were also searched for new resources. In addition to targeting journal searches, similar search terms were repeated in the broader interdisciplinary databases, including ISI Web of Knowledge and ISI Web of Science, the Australian Public Affairs Information Service and Social Sciences Abstracts. Other databases searched included Austlii, the Lancet and PubMed. At this time, researchers who were widely cited on the topic were also subject to searches in the databases. Those who were connected to an institution were also traced to find their publishing records for any other possible research or research partners. After these searches were completed, we made special efforts to locate more recent materials, which are often challenging to find. In addition to searching the authors of current empirical reports, we tried to trace initial funding proposals by searching the websites of research councils and funding bodies. Beginning with the Economic and Social Research Council (UK), as well as the Australian Research Council, these searches located recent or less widely recognised projects. Contacts external to the project In the event that reports were cited but unable to be found, we made efforts to contact sponsoring organisations or the researchers themselves to obtain copies of the reports. This was the case, for example, for 'Opening the Doors to Freedom', from the organisation Asylum Welcome (n.d.). In an attempt to ensure that no critical resources were missed in the tight time frame, we also contacted lead researchers in the field across multiple disciplines. These included: Jeff Crisp, of UNHCR's Policy Development and Evaluation Service; Alice Edwards, contributor to UNHCR's Alternatives to Detention of Asylum Seekers and Refugees (Field, 2006); and Grant Mitchell of the International Detention Coalition. We also conferred with Associate Professor Jane McAdam, an expert on refugee and immigration law, and Dr Eileen Pittaway, Director of the Centre for Refugee Research, both advisors to this report. Defining Empirical Defining empirical in a field that draws on such a diverse range of academic disciplines is difficult. In some of the scientific literature, such as psychological and sociological studies that use quantitative methods, sample sizes must be larger for internal validity, whereas the qualitative methods used in much of the anthropological literature relies on a very small sample and case study methodology.

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Empirical Inclusion Criteria For the purposes of this literature review, empirical has been interpreted to mean quantitative studies and studies that relied upon qualitative data from two or more sources, including longitudinal surveys of qualitative material. The qualitative research also needed to be for the stated aims of research, rather than exclusively for advocacy purposes. Commentary or advocacy documents that drew upon the personal stories of detainees and asylum seekers that possessed no clear methodology or hypothesis were rejected. Empirical Exclusion Criteria Qualitative research presented particular challenges in relation to clear inclusion criteria. Single case studies were excluded unless they were used in conjunction with other research methodologies such as surveys or focus groups. A number of documents and reports were identified that were analyses or discussions of the consequences of policies, with reference to empirical material. However unless these reports also contained empirical research in addition to analysis, they were excluded. There were periodic exceptions to these criteria, including for example, policy review documents produced by implementing institutions. Several documents of this nature provided analyses and empirical research, both undertaken to evaluate the consequences and effectiveness of policies. There were also pragmatic considerations, as often internal review documents were the only empirically based material available.

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4

Overview of the Literature

Research that addresses the resolution of immigration status varies widely in scope and quality depending upon the type of mechanism being studied and the specific questions it seeks to answer. Overall, it can be said that few mechanisms have been studied comprehensively, and in no instance has thorough comparative research been conducted among different status resolution mechanisms. This lack of evidence makes comparative analysis challenging without the assistance of case studies. The literature can be broadly placed into three categories: empirical studies, analytic studies and commentary. The literature compiled in this report focuses on the first category and has been restricted along the guidelines discussed in the methodology section. However, much of the research undertaken and the reports cited will be more clearly understood when placed in the context of both advocacy and analysis literature. Many empirical studies discussed below have been commissioned or undertaken in response to policy changes or demands by advocacy organisations for a change in policy. For example, there are extensive materials in response to policies of detaining asylum seekers (Silove et al., 2007). In other situations, empirical research has been undertaken as part of a policy review, to measure the effectiveness of the policy, as in the case of some of the literature from the US around supervised release (Sullivan et al., 2000a, 2000b). These examples demonstrate one general limitation of the field: surrounding a highly politically charged subject, the empirical research most commonly evaluates policy retrospectively, rather than driving it. Another limitation emerges from the fact that the literature tends to emerge from only two sources: empirical studies are either commissioned/funded by host governments or advocacy/service non-government organisations (NGOs). Government studies are generally better resourced (both financially and in terms of information) but may fail to study alternative (and often successful) programs funded entirely by NGOs. Reports by NGOs are often limited by logistical and ethical restrictions (see further paragraphs), as well as lack of access to government statistics. For example, one NGO seeking to conduct random sampling in US detention centres requested information necessary to establish random samples (i.e., information about the potential subjects) but these requests were refused (PHR, 2003). The dichotomy of the literature does not suggest that reports from these sources are of poor quality, but it does locate the literature in a particular political context. It may explain the preponderance of literature relating to detention and the comparative lack of empirical material exploring alternatives. The concern with detention also leads to a lack of focus on status resolution. Furthermore it could explain the decision in many reports to focus either on the consequences of a particular system for the individual, or to focus on the effectiveness of the policy for other stakeholders. There are few reports that seek to balance both, or to reconcile differing conclusions from different research emphases. Because of this we have deliberately sought out reports that do provide both these dimensions. A further complicating factor in locating the literature is that different academic disciplines take particular approaches to research and also to conceptualising the problem of promptly resolving immigration status. There are three fields that require 14

RESOLVING IMMIGRATION STATUS: A review of the international literature

individual discussion: the medical field; the criminological perspective; and the legal domain. Medical and health policy journals have a large number of articles relating in particular to the mental health consequences of detention and different detention facilities. This research tends to have larger sample sizes and offers some of the few longitudinal studies of the consequences of detention or of having unresolved immigration status (e.g., Keller et al., 2003). There is also a sub-group of research that explores different effects of detention on children and women, highlighting consequences for these demographics (e.g., Mares and Jureidini, 2004). There is comparatively little research into the consequences of community release and other alternatives to detention; a lack also reflected in other disciplines and the literature more broadly. Research on the effectiveness of some interventions, particularly relating to compliance, could be identified in the criminological literature. However, we have excluded this research for the most part because immigration violations are civil, not criminal matters. Non-citizens with unresolved status do not require or merit punishment or rehabilitation, and thus the criminological research has limited applicability to compliance in the context of immigration and asylum. Where we have drawn upon criminology, we have done so sparingly, and only where the immigration research is absent. For example, in judging compliance, we have relied upon a report that cites post-parole appearance rates to determine what rates of compliance should be considered 'effective' (Field, 2006). The legal literature places immigration enforcement and resolution within the context of domestic and international law. Writings on the legality of detention and alternative practices are not empirical per se, but many legal articles utilise empirical findings to support their arguments that violations of due process or of human rights are occurring (e.g., Walsh and Walsh, 2008). These provide a valuable addition to the empirical literature. A further gap in the literature relates to the prevalence of studies on particular groups of non-citizens. This review seeks to examine mechanisms to resolve the immigration status of many types of non-citizens, but the literature is dominated by reports relating to refugees and asylum seekers; there is far less material focussing on others who have an unresolved immigration status. As well, the literature is dominated by research from the UK, Australia and the US, with comparatively little from other locations. As 'Fortress of Europe' immigration policies yield more empirical data, this regional limitation will change, but at present, current research examines the policies surrounding skilled migration. There are distinct methodological limitations within this field of research. There are logistical and ethical challenges associated with collecting data about and from noncitizens. This points to a difficulty in recruiting participants for large sample studies, as well as the impossibility of conducting experimental studies (Siulc et al., 2008). Severe problems with collecting cross-country data, because of the recalcitrance of government bodies and the difficulty of comparing stages of the legal system, limit the research as well, particularly for data involving speed of resolution and

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compliance (Field, 2006).8 Research challenges have been well presented by Kirmayer et al. (2004), who note the ethical and credibility challenges associated with conducting detention research both with and without official government consent. These limitations on measuring compliance and speed of resolution diminish the chances for sound empirical research on cost effectiveness. While some studies have tried to estimate the savings of various programs in comparison to detention (Field, 2006; Siulc et al., 2008), none has taken into account the cost to the host state of those who are not compliant, nor the potential benefits accrued from permissive immigration enforcement regimes. To do so would require the building of a complex model accounting for, among other elements, migration patterns and the economics of immigration courts.9 To move to particular and precise discussion of the empirical research, the literature review is divided into the following sections. Section 3 has identified specific contextual issues unique to conducting a literature review on the topic of immigration status resolution. Section 4 provides an overview of two of the key studies that examine immigration resolution. Section 5 turns to several mechanisms in turn, locating empirical research on: 1) the effects on individuals of the mechanism; and 2) the extent to which these mechanisms are effective and efficient. In Section 6, we discuss deterrence, and in Section 7, we offer our conclusions.

8

Discrepancies in immigration data also exist within countries. In 2003, the US Government's Bureau of Immigration, Customs and Enforcement (ICE) stated that the appearance rate of individuals released from custody was only 15%, a figure used repeatedly over the next two years to request additional funding from Congress and to justify the widespread detention of non-citizens. Appearance rates from other studies, however, indicate that the 15% figure significantly exaggerated the rate of absconding. More recently, ICE has started distinguishing in its data between two distinct groups: those who abscond during proceedings and those who abscond with final orders of removal. As a result, ICE's appearance rates are now more in line with other studies, indicating appearance rates of 70% (Frelick, 2005). There have been studies that categorise the costs of granting asylum, including state assistance and processing costs, but these consider neither the cases of rejected asylum seekers, nor the cases of non-citizens as a whole (Betts, 2006, citing Jandl, 1995 and Liebaut, 2000).

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5

Key Studies

We begin our review with two comprehensive reports whose findings are difficult to place within the specific status mechanism sections because they offer broad conclusions and comparisons among mechanisms. 5.1 United States Commission on International Religious Freedom (USCIRF), Report on Asylum Seekers in Expedited Removal (February 2005)

A comprehensive 500-page study produced by the bipartisan US Commission on International Religious Freedom (USCIRF), Report on Asylum Seekers in Expedited Removal, specifically examined the US policy and implementation of 'Expedited Removal' on detained asylum seekers only (as opposed to all non-citizen detainees) (USCIRF, 2005a, 2005b).10 The study examined if immigration officers (who are not under the jurisdiction of immigration courts, but rather work under a branch of the Department of Homeland Security (DHS)), when exercising Expedited Removal, were: 1) improperly encouraging withdrawals of applications for admission; 2) incorrectly failing to refer individuals to hearings in which their asylum claim would be determined (a 'credible fear' interview); 3) incorrectly removing individuals to countries where they may face persecution; and 4) detaining individuals improperly or under inappropriate conditions. Produced under the guidance of a chief methodologist, the final report combined the results of eleven expert reports, using a range of methods including: the use of existing administrative data from the US Government (using moderately large samples), augmenting such data with carefully tested and highly structured data gathering instruments to conduct direct observation and interviews (with dual independent coding); site visits to facilities; telephone interviews with the staff of 19 of the largest detention centres; and interviews with 39 asylum seekers (USCIRF, 2005a: 3-4, 37-39). This methodology has been noted as 'remarkable' because researchers, through unprecedented access, were able to study the failures of the practice of Expedited Removal, in addition to problems with the policy itself (Corlett, 2007: 24). The USCIRF report found problems in all four areas that its researchers explored. The following notable findings are relevant to this report, primarily the impact of Expedited Removal (a mechanism for status resolution) on the individuals (i.e., asylum seekers) themselves. Effects on Individuals First, the report's section on the conditions of confinement for detained asylum seekers argues that the trauma which detainees are likely to experience as a result of

10

Expedited removal is a US policy that authorises immigration inspectors to summarily remove all non-citizens arriving at a port of entry, and several classes of non-citizens already within US borders. Asylum seekers and other protection claimants are, by the provisions of the law, protected from being removed, but very often they remain in detention for the duration of the asylum procedure.

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their imprisonment may be diagnosed as 'complex post traumatic stress disorder' (PTSD) (USCIRF, 2005b: 196). The study consisted of semi-structured interviews with detainees and administrators in 19 detention facilities throughout the US, two focus groups and four site inspections. The study found a number of basic inconsistencies in policy application, from varying quality in centre administrators to inadequate training programs for facility staff (USCIRF, 2005b: 183-185). Of the 19 facilities in 12 states, six were gaols, five were DHS facilities, seven were private contract facilities and one was specifically for unauthorised families (USCIRF, 2005b: 183). There was no uniformity of treatment for the asylum seekers, and in some cases the staff were unaware which detainees were asylum seekers, particularly since in some cases they were housed with other detainees including those with criminal convictions (USCIRF, 2005b: 184-5). The rights of detainees varied greatly between facilities, including the extent of monitoring, which tended to be extensive and consisted of both electronic and human surveillance techniques (USCIRF, 2005b: 185). At one time, 18 of the 19 centres used physical restraints on the detainees, and some used methods such as solitary confinement as punitive measures against detainees who misbehaved (USCIRF, 2005b: 186). There were strict limits on personal privacy in the majority of cases, for example through public showers and toilets (USCIRF, 2005b: 186). Uniforms were required in 16 of the 19 centres (USCIRF, 2005b: 186). Visiting hours were severely restricted in all but two cases, including limiting days for social visits, length of social visits and contact between asylum seekers and their visitors (USCIRF, 2005b: 188). Even in a centre with the most permissive regulations, detainees reported depression and suicide attempts (USCIRF, 2005b: 190). Administrative challenges such as language barriers compounded tension and miscommunication (USCIRF, 2005b: 190). In addition to the fact that asylum seekers were detained under conditions that, with few exceptions, resembled correctional facilities, the rates of release from different detention centres following a credible fear interview varied enormously, from 0.5 percent in New Orleans, LA to 97.6% in Harlingen, TX (USCIRF, 2005a: 62). Second, the study found that Expedited Removal did, in practice, fail to accurately establish a 'well-founded fear'. Despite the fact that there are provisions in the Expedited Removal policy specifically designed to protect asylum seekers from being deported to countries where they may be persecuted, a disjoint between status resolution policy and its implementation meant that regulations governing the actions of immigration officers were not always followed. These observations were borne out by statistics: in 15% of observed cases (12 out of 79) where an individual expressed a fear of return, the individual was not referred to a further interview.11 In approximately half of the inspections observed, immigration

11

The study noted that immigration inspectors granted credible fear interviews in 85% of the cases where the individual expressed a fear of return (USCIRF, 2005a: 53-54). Of those not referred to an interview, 58% had expressed a fear of political, religious or ethnic persecution (criteria that are grounds for asylum), but the inspector had incorrectly indicated that the applicant had stated no fear of return.

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inspectors failed to follow their standard script completely, omitting the fact that the non-citizen may ask for protection if s/he has a fear of returning home (USCIRF, 2005a: 6). In addition, the researchers interviewed two groups of asylum seekers who had been 'pushed back' at primary inspection on previous days, very much contrary to policy, and international law (USCIRF, 2005a: 6).12 Third, the report found serious problems in the asylum approval process conducted by immigration judges. In nearly 25% of the cases, judges decided negatively because the claimant had 'added detail' to prior statements. The addition of detail, however, should have been acceptable because prior statements were often unreliable and incomplete (USCIRF, 2005a: 7). In addition, there was significant discrepancy among the asylum approval rates decided by immigration judges. A number of factors seemed to affect asylum approval: individual judges' decision history; the presence or absence of legal representation (a difference of 25% and 2% respectively); and the location of the claimant in either central or remote detention centres (USCIRF, 2005b: 403). This finding points to the fact that asylum seekers did not receive consistent consideration of their claims. These findings demonstrated the ways in which asylum seekers were negatively affected by Expedited Removal and they support further evidence on the negative impacts of detention on individuals, detailed below.13 As already noted, the researchers' unprecedented access to files, immigration staff and non-citizens has garnered attention from other researchers, who would like to see immigration control practices similarly evaluated in other countries (Corlett, 2007). 5.2 Ophelia Field/UNHCR, Alternatives to Detention of Asylum Seekers and Refugees (April 2006)

To date, the most comprehensive global review on mechanisms for resolving noncitizen status is Ophelia Field's 2006 Alternatives to Detention of Asylum Seekers and Refugees commissioned by UNHCR. The study investigated the effects and effectiveness of interventions in 34 countries, and overlaid these results to tests of necessity and proportionality as dictated by civil and international human rights law. The study drew on existing written sources (reports, academic articles, surveys,

12

There is no way to measure the frequency with which `pushbacks' occur since those doing the pushback do it surreptitiously; these two groups were only discovered because they were not pushed back when they tried another port on a different day (USCIRF, 2005a: 6). A follow-up `Report Card' published by USCIRF in February 2007 found that, despite extensive media coverage following the release of the report, most of its recommendations had not been implemented two years later (USCIRF, 2007). DHS expanded the reach of Expedited Removal, measures were not put in place to ensure that individuals were correctly referred to a credible fear interview, recommended policies were not adopted to improve detention conditions for asylum seekers, and the recommendation that asylum officers be permitted to grant asylum at the credible fear stage was ignored.

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government documents and newspaper articles) and was supplemented by interviews with and draft comments from government officials, experts and practitioners. The study noted not only the dearth of empirical work on the topic but also the scarcity of official data on compliance/absconding rates in most countries, making it difficult to reach concrete conclusions. The study contained observations or evidence related to all of the components of this report. Effects on Individuals The report offered no empirical evidence of its own on the subject of the impacts on individuals of various mechanisms for status resolutions, but it cited academic and NGO sources that reveal the damaging psychological effects of detention. These authors and others are covered below, under the detention section. Legal Obligations The report presents the legal case for minimising the use of detention and maximising the use of alternatives, in agreement with international refugee law, international human rights law and regional instruments. According to international human rights law, arbitrary detention is impermissible for all, and detention and any other restrictions on movement must be justified in accordance with the law, according to articles 9 and 12 of the ICCPR (1966). Article 31 of the Refugee Convention (1951) prohibits the penalisation of refugees and asylum seekers on account of their illegal entry or presence.14 The American Convention on Human Rights (OAS, 1969) offers regional protection on the freedom of movement, conditioned upon lawful residence, as does the Fourth Protocol to the European Convention on Human Rights (Council of Europe, 1950). In addition, regional documents in Africa (OAU, 1981) and Latin America (UNHCR, 1984) both emphasise the wellbeing of the asylum seeker in determining where to locate them, thus highlighting the need to ensure the dignity of the person. Field points out, as previously noted, that the UN Human Rights Committee has cited 'likelihood of absconding' and 'lack of cooperation' as factors that justify detention, but only after a full assessment conducted on an individual basis, coupled with the right to seek judicial review (HRC, 1997).15 These human rights obligations and communications suggest that, in formulating any policies or decisions about which interventions to apply to non-citizens with

14

What constitutes penalisation according to the Refugee Convention (1951) is unsettled in international refugee law, since penalty is not defined therein. The question remains whether penalty applies only to criminal sanctions, or also to administrative ones, such as detention. Building on the UN Human Rights Committee's broad interpretation of penalty in article 15(1) of the ICCPR (1966), it has been argued that `article 31 warrants a broad interpretation reflective of its aim to proscribe sanctions on account of illegal entry or presence. An overly formal or restrictive approach is inappropriate, since it may circumvent the fundamental protection intended' (McAdam and Garcia, 2009: 14). Field does not investigate the risk of absconding as a potential security risk to the community. For a thorough discussion of this topic, see Joint Standing Committee on Migration (2008).

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unresolved status, information about effectiveness and efficiency such as compliance or cost effectiveness (explored below) should be regarded in the context of adherence to the principle of proportionality. That is, interventions should be appropriate to achieve their protective function and must be the least intrusive instrument amongst those which might achieve the desired result. 'The consideration of alternative, noncustodial measures is a prerequisite for satisfying the principle of necessity in relation to lawful detention' (Field, 2006: 20). Field also notes that alternatives to detention can be applied in ways that advance or regress the rights of non-citizens, depending on whether, in the absence of such alternatives, individuals would have been detained or released.16 Thus, a meaningful framework for determining which interventions are appropriate should consider if these interventions are a step forward or backwards in terms of human rights obligations. Compliance and Costs Field cites findings from several reports and personal interviews throughout the body of the report, most of which are described extensively in the following sections. In general, singular community-based programs such as asylum shelters regularly yield appearance rates at pre-removal hearings of 98% (Field, 2006: US and Canada sections of Appendices). The creation of community ties appears to be a major factor in ensuring compliance, but the informality of the programs makes them difficult to replicate. Supervised release also ensures relatively high compliance in the US and Canada. The US-based supervised release program, Appearance Assistance Program (AAP), yielded 91% appearance rates for those who underwent intensive supervision, as compared to 71% from an unsupervised comparison group, both measuring the rate of appearance at pre-removal hearings (Field, 2006: 230, ftn. 243). It was estimated that if implemented nationally for 2,500 participants, AAP could save the US Government more than USD 35 million (AUD 41.7 million) (Field, 2006: 250).17 In Canada, the Toronto Bail Program, a government-funded supervision and bail program, yielded more than a 90% appearance rate for both asylum hearings and deportation (Field, 2006: 88). Studies of bail programs with even minimum reporting requirements suggest that releasees will appear at high rates. A UK study of asylum seekers who were allegedly considered a high flight risk showed that 90% appeared at pre-removal hearings and 80% complied with the terms of their release while awaiting removal (Field, 2006: 218-219). On cost, it was estimated that by releasing 73 asylum seekers (who did not abscond) to a bail program, the government could have saved GBP 430,000 (AUD 830,000) in detention costs (Field, 2006: 221).

16

For example, in evaluating whether a supervised release program is a justified deprivation of liberty, one must consider if the individual would have remained in detention in the absence of the supervised release program, or if s/he would have been released with no supervision. See further section on Supervised Release for more detail on the AAP program.

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Government policies that provide incentives for compliance and disincentives for non-compliance are considered useful, although data on the effect of these policies alone are difficult to substantiate. Incentives include assistance programs and open reception centres, while disincentives include the withholding of such assistance, as in Denmark or Poland, or being sentenced to deportation in absentia, as in the US (Field, 2006: 46). Legal advice that provides clear communication and guidance to asylum seekers on these incentives and penalties improve compliance (Field, 2006: 45-46). Legal advice also improves efficiency. The Florence Immigrant and Refugee Rights Project of Arizona, which provides group legal orientation sessions to detainees, reduced the number of days in detention by 4.2 days per detainee (Field, 2006: 239).18 This reference to the length of the process is one of very few mentions of the speed of status resolution in the entire report.19 Measures such as electronic tagging only marginally increase compliance for those individuals considered a low flight risk (no statistics were provided) and present a substantial cost to the state. In Belgium, it was estimated that each new device costs EUR 250,000 (AUD 425,000), money that is lost if the individual absconds, and a daily maintenance/monitoring rate of EUR 10-12 (AUD 17-20) per day (Field, 2006: 75). Tagging is also considered a severe restriction on liberty and as such may require legal justification on a case-by-case basis, at further cost to the state (Field, 2006: 38). Throughout the report, Field cites evidence that for asylum seekers who are not considered a high flight risk, detention is generally found to be the most expensive intervention for the state (Field, 2006: 48). This finding should be considered in conjunction with the fact that other interventions may shift the burden of cost to other institutions, such as private charities or community groups who require further resources to provide legal aid, housing and work opportunities to those released into the community. More broadly, the report notes that those applying for asylum in destination countries such as Australia (as opposed to transit countries such as Indonesia) have an incentive to comply with asylum procedures because they wish to remain in the country legally, and as such rarely require restrictive measures against absconding. It should be noted that the Field report's findings are accurate only through March 2004.

18

As well, see section below on Legal Assistance for more recent findings of the impact of a Legal Orientation Program (Siulc et al., 2008). In the entire report, there were only statistics on the length of court proceedings for one country: Germany. Field notes that in Germany, 28% of all first instance decisions are taken within one month. Altogether, 81% of all first instance decisions are made within six months upon application. The average length of an asylum procedure in Germany, inclusive of the court proceedings, amounts to 22 months (Field, 2006: 111, ftn 116).

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6

Mechanisms for Status Resolution

The following section reviews various mechanisms for status resolution, and locates, where available, empirical studies on their impacts and effects. There are many mechanisms for which there is only partial information: where possible, we have filled in the gaps with analysis or high quality narrative accounts. 6.1 Detention

Of all the mechanisms studied, the literature on detention is by far the most developed. These reports primarily examine the impact on individuals (i.e., the detainees themselves) with, perhaps, short mention of the costs involved. An overall snapshot of the detention literature reveals studies of varying methods (sample sizes, selection method and data collection). The results of these studies, however, are consistent: the literature is unanimous in finding that detention does not contribute to the wellbeing of detainees. It has been less clearly established if the ill effects of detention are partially the result of pre-detention experiences, such as traumatic flight. Health and Detention The consequences of detention on the health of asylum seekers have been almost overshadowed by mental health concerns related to detention policies. Many of the empirical studies related to the health of immigration detainees are connected to investigations of claims of abuse by authorities within those institutions as in the case of the Krome Detention Centre investigations in the US (Women's Commission, 2000) and to a lesser extent the Palmer Inquiry in Australia (Palmer, 2005). There are some accepted conclusions about the health consequences of detention, and a growing body of conventional and accepted wisdom derived from empirical studies about the physical demands and consequences of detention, especially on more vulnerable groups such as women and children. One report from Australia (Eagar et al., 2008) catalogued the full array of health issues that emerged in 2005-06 for 720 detainees out of the 7,375 detained in Australia in that time period. The report utilised a purposeful sample to locate groups that might have particular health needs, and emphasised that because the report only covered a particular time period, its findings could not be said to represent a comprehensive snapshot of the health of immigrant detainees. Further, because the research did not also examine non-citizens who were not detained, there is no way to distinguish between health problems associated with detention and those associated with prior experiences, such as refugee trauma and flight. The report identified three primary findings relevant to this study. First, the prevalence of infectious diseases did not represent a serious health issue, as many policymakers had until then expected. Second, those with mental health problems had greater physical health problems. This is consistent with other studies (see below). Third, the report compared the medical conditions of detainees who reported symptoms to those medical conditions reported in general Australian practice. The report found that detainees in the sample had more social, digestive, psychological, neurological and eye problems, and that patients in general practice had more cardiovascular, endocrine and respiratory problems. It was suggested that these differences might reflect differences in the age and sex profiles of the two groups or 23

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alternatively could be a result of lack of access to health care for detainees in the period prior to detention. While demonstrating the variety of health problems that detainees encounter, the report avoids concluding that detention causes a general decline in health. Three notable studies, however, do offer conclusions on the effects of detention on both health in general and on mental health. Human Rights First (HRF) is an advocacy NGO that has monitored US detention centres since 2003, when DHS took over responsibility for their operation. In a report studying the impacts of health and mental health on asylum seekers specifically, HRF reported that medical care available to detainees has been poor, with an 18% vacancy rate for medical staff, indicating a shortage of personnel. HRF cited 90 reported deaths of detainees including 13 suicides since 2003. Further, misdiagnoses of health symptoms due to poor interpreting was reported (HRF, 2009: 5). HRF relied on interviews with hundreds of detained asylum seekers, visits and tours of more than 10 detention facilities, meetings and correspondence with US government officials, interviews with nearly 30 refugees who were detained before being granted asylum, and interviews and correspondence with more than 30 other pro bono faith-based and legal service providers. Though HRF's methods could arguably be questioned for selection bias ­ i.e., those with complaints would be more likely to seek out HRF staff, and those who want to exit the detention centre might be more likely to seek representation and thus discuss their complaints ­ the report is included here because of the large number of interviewees (though not strictly a sample size). Similarly, Physicians for Human Rights (PHR) conducted a study of 70 self-selected asylum seekers in three facilities in the New York City area (PHR, 2003). (PHR's requests for the needed information to conduct random sampling were refused). The research relied on standardised psychological interview instruments, and supplemented these with questions specifically related to the experiences of interviewees in detention. To evaluate the narrative information, general attempts at determining credibility were conducted, including determinations on: detail, consistency, affect and clarity. However, the study did not attempt to corroborate any events described by the asylum seekers, nor were detention centre staff interviewed. The study found that 90% of asylum seekers reported at least one physical health problem that they considered serious and half believed their physical health had worsened while in detention. Musculoskeletal pain, headaches and gastrointestinal problems were the most common complaints. It is possible that due to the psychological stress experienced, the physical symptoms were somatisations, or likely psychological in nature (PHR, 2003: 9). More than half of asylum seekers reported having difficulty accessing care for their physical conditions (PHR, 2003: 8-9). The study also found that the mental health of asylum seekers in detention was poor and worsened for most the longer they were in detention. The deterioration of conditions is significant because it may suggest that the mental health problems are not exclusively the result of experiences related to being an asylum seeker (for example, flight from conflict) but because of detention itself. It was found that detention can induce mental trauma, with asylum seekers experiencing multiple 24

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symptoms at high rates, including: 86% experienced depression; 77% experienced anxiety; and 50% experienced post-traumatic stress disorder (PHR, 2003: 2). While in detention, asylum seekers reported difficulty accessing mental counselling services, with only 13% of individuals who wanted these services receiving them (PHR, 2003: 8). Most asylum seekers attributed their mental symptoms to numerous disturbing encounters with immigration officials while in detention. These encounters included: verbal abuse and other indignities; poorly explained rights; experiencing solitary confinement or the threat of solitary confinement; and occasionally physical abuse. The confinement and loss of liberty triggered for asylum seekers feelings of isolation, powerlessness and the disturbing memories of persecution suffered in their home countries. While in detention, 25% of asylum seekers had suicidal thoughts and two out of 70 interviewed attempted suicide (PHR, 2003: 7). A third study in the UK confirmed a pattern of declining health and mental health for detainees. A study conducted by Médecins Sans Frontières (UK) and published by the UK NGO Bail for Immigration Detainees (BID) interviewed 16 detainees and found that all 16 had deteriorating health as a result of detention, caused by a lack of access to secondary health facilities, lack of referrals for a host of health issues (such as a persistent cough possibly indicating tuberculosis and possible sexually transmitted infections post-rape), absence of continuity of care and follow-up, incomplete medical notes and infrequent interpreting services (Cutler, 2005). Mental Health and Detention The consequences of immigration detention for the mental health of asylum seekers have been researched relatively extensively in a number of different countries. The focus of this research has been on mandatory or indefinite detention, and on asylum seekers, rather than on any other category of detained individual of unclear immigration status. The literature in this field is dominated by psychologists and methodologically is particularly interesting because there are a number of longitudinal studies that gauge the consequences over a designated time period and do not simply use cross-sectional analyses or singular focus groups or surveys. One of the earliest reports documenting the consequences of detention on asylum seekers was the journal article produced by Patrick Bracken and Caroline GorstUnsworth of the Medical Foundation for the Care of Victims of Torture in 1991 (1991). The report drew from ten cases of male asylum seekers who complained of torture in their home countries and used 'T' as the illustrative case study. Findings of the report highlighted the damaging consequences of detention, including two suicide attempts and four with suicidal ideations: nine reported feeling hopeless and tearfulness and all reported depressed moods, loss of appetite and sleeping disorders (Bracken and Gorst-Unsworth, 1991). Other symptoms included nightmares, frustration, irritability, sleep disturbances and intense fear and anxiety (Bracken and Gorst-Unsworth, 1991: 657). These findings appear to be congruent with later research in this field. Two of the most prolific researchers in the area of asylum seekers, mental health and immigration detention are Derrick Silove and Zachary Steel. From the mid-1990s, many of the

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most influential and commonly cited empirical studies have been conducted by these researchers or derived from their studies. The 1998 report compiled by Silove and Steel compared the results of a number of empirical studies of asylum seekers in the community and in detention (1998). The methodology of these studies was based upon standardised measures of symptoms of mental illness including, among others, The Harvard Trauma Question, the Depression, Anxiety and Somatization Scales of the Hopkins Symptom Checklist, the Four Measures of Mental Health Panic Scale and self-reporting assessment criteria (Silove and Steel, 1998: 20,28). The broad conclusion of this early study was that asylum seekers held in detention had been exposed to higher levels of pre-migration trauma than asylum seekers in the community and posited that this was because they were more likely to need to flee their home country at short notice and without proper documentation (Silove and Steel, 1998: 33). This trend was constant across different locations of asylum seekers, whether it was their destination upon arrival in Australia or their country of origin (Silove and Steel, 1998: 33). The report also documented high rates and high risk of mental illness for those asylum seekers in detention and it was suggested that there may be evidence for detention as an aggravating factor in mental distress or illness. The need for further research was also highlighted (Silove and Steel, 1998: 33). Silove and Steel subsequently conducted that research. Over more than a decade, Silove and Steel have produced a number of reports and research documents that identify a causal link between increased stress and distress in asylum seekers and mandatory immigration detention (Silove et al., 2007; Silove et al., 2000; Steel et al., 2006). They point out that asylum seekers as a category are predisposed to be vulnerable due to experiences they had before leaving their country of origin and that the detention environment is a critical part of exacerbating and creating symptoms of mental ill health (Newman and Steel, 2008; Silove et al., 2007; Silove and Steel, 1998; Silove et al., 2000; Steel et al., 2006). Another report used a rather different methodology but produced similar findings. In a participant-observer account of detention in Villawood, Australia, detainee and former medical practitioner Aamer Sultan collaborated with clinical psychologist Kevin O'Sullivan to produce a paper that explained the effects of detention on asylum seekers. In addition to the participant account, a survey of 33 detainees was conducted. This survey found similar or higher levels of psychological distress than those documented by previous reports, with 85% of respondents acknowledging feeling chronic depressive symptoms and 65% of respondents reporting suicidal ideations (Sultan and O'Sullivan, 2001). The other conclusions from this study are the four stages identified by Sultan and O'Sullivan that link the stages of psychological trauma to the stages of the application process. The four stages identified are the nonsymptomatic stage, the primary depressive stage, the secondary depressive stage and the tertiary depressive stage (Sultan and O'Sullivan, 2001). Each stage of the application process that rejects the applicant produces more acute symptoms, ranging from symptoms including fear, anxiety, depression and sleeping problems to exacerbating or reactivating post-traumatic stress disorder (Sultan and O'Sullivan, 2001). A number of other reports are compatible with these findings, the most recent of which is the 2008 'Review of refugee mental health and wellbeing: Australian 26

RESOLVING IMMIGRATION STATUS: A review of the international literature

perspectives' by Graham R. Davidson, Kate Murray and Robert Schweitzer (Davidson et al., 2008). Other reports that compare the consequences of political detention with mandatory immigration detention demonstrate similar levels of distress for detainees (Koopowitz and Abhary, 2004). An extensive empirical piece of research from the US about detention had a relatively large sample size of 70 and also compared results longitudinally. The findings were consistent with results previously discussed. Detention was found to exacerbate mental trauma and psychiatric symptoms in detainees, and from the follow-up surveys it was determined that while these symptoms may subside post-release, they did not disappear. Those who remained in detention at the time of follow-up had symptoms that brought them below the base line established at the initial survey (Keller et al., 2003). In early 2009, Katy Robjant, Rita Hassan and Cornelius Katona undertook a literature review of empirical studies of the effects of mandatory detention on detainees, identifying similar reports to those discussed here (Robjant et al., 2009). The trends they identified are consistent with findings reported here ­ i.e., that despite the difficult methodological problems in undertaking this kind of research, there are consistently high levels of mental health problems among detainees and there is a growing body of literature that supports claims that there is an independent adverse effect on mental health from detention. These conclusions are not limited to the Australian, US or UK contexts. Research undertaken in Japan and Denmark reports similar findings, particularly relating to the consequences of prolonged detention (Hallas et al., 2007; Ichikawa et al., 2006; Montgomery and Foldspang, 2005). There are also a number of reports focussing on the effects of detention on children and adolescents, and comparing accompanied and unaccompanied minors. One of the investigations by Sarah Mares and Jon Jureidini in Australia studied 10 children, between six and 17 years old. The research found that all 10 children fulfilled criteria for both PTSD and depression with suicidal ideation, eight had made attempts at selfharm (rare for pre-adolescent children) and seven had anxiety or somatic symptoms (Mares and Jureidini, 2004: 521). Those of preschool age had emotional disturbance symptoms or developmental delay (Mares and Jureidini, 2004: 522-523). Similar results were produced in a report in London, which had a greater focus on PTSD (Heptinstall et al., 2004). In that report, investigators focussed on the prevalence of PTSD and found PSTD symptoms correlated largely with pre-migration traumas. Further, it noted that post-migration trauma and status instability accentuated PTSD symptoms (Heptinstall et al., 2004: 376). A number of other reports, including one produced by the Western Young People's Independent Network and Catholic Commission for Justice Development and Peace in Australia (WYPIN, 2002) and survey results in the Sultan and O'Sullivan report (2001) specifically identified the mental harm of detention for children. The well-developed literature on the mental health of detainees continuously reiterates its negative impacts. It is significant to note that for this comparatively expansive research area, there have been few reports produced on the consequences of detention for categories of detainees other than asylum seekers. Those reports that do exist focus on children and families and critique specific aspects of the US approach to 27

RESOLVING IMMIGRATION STATUS: A review of the international literature

handling the detention of these populations (Women's Commission, 2009; Women's Commission and LIRS, 2007). A note on the mental health of non-detained asylum seekers Two studies are described below that discuss the mental health of asylum seekers who are not in detention. They do not offer comparative findings, but they do confirm that, as already noted, asylum seekers are already in a vulnerable situation and more prone to mental ill health than the general population. A study by Matthew Porter and Nick Haslam sought to evaluate other factors that could affect refugee mental health, not restricted to detention practices (Porter and Haslam, 2005). Porter and Haslam used empirical reports and studies on the mental health of and demographic information about refugees and internally displaced persons, comparing various influencing factors such as conditions upon entry and whether or not individuals were recipients of humanitarian aid, to mediate conclusions about mental health. They concluded that the mental health of refugees was intrinsically tied to the processes by which they became a refugee and fled the country, as well as their demographic information. They found that there were worse outcomes for refugees in institutional accommodation and detention, those who had limited or deliberately restricted economic freedom and those whose reason for leaving was ongoing (e.g., war). Furthermore, certain groups of refugees had worse outcomes. These included older refugees, female refugees, more educated refugees, higher socioeconomic status refugees and rural-based refugees (Porter and Haslam, 2005: 606-610). Research conducted in the Netherlands attempted to document the mental health consequences of a long asylum process (Laban et al., 2004). The study compared two groups of Iraqi asylum seekers who had lived in the Netherlands for less than six months, and more than two years, respectively (Laban et al., 2004). The study highlighted the particular vulnerability of women and pointed out that mental health risks were significantly higher in asylum seekers than in refugees. Related, the study noted that the risks for mental health problems associated with a long asylum process were higher than the risks of mental health problems related to experiences in the country of origin (Laban et al., 2004: 847-850). This report indicates that the uncertainty associated with unresolved status may correlate to mental ill health. Summary In summary, despite variations in methodology the literature on the consequences of detention on detainees offers a clear message. Detention contributes to negative health and mental effects for a population that is often already at its most vulnerable. Since this finding is clear as it stands, we believe that future research in this area should compare the health/mental effects of detention to other status resolution mechanisms. This could fill an important gap in an increasingly crowded literature. In the future, research should also address the health of the whole population of detainees, rather than focusing primarily on asylum seekers. 6.2 Legal Assistance

The literature on the effects of legal assistance comprises reports primarily from the US and Canada that examine different forms of legal services ­ including legal 28

RESOLVING IMMIGRATION STATUS: A review of the international literature

representation (government-funded, pro bono or otherwise), legal counselling, legal orientations, legal clinics and other types of legal advice. The extent of the evidence is relatively limited and contains several gaps. There is one consistent message: legal services improve the quality of the immigration status resolution process. But questions remain about the effects of legal assistance on the speed of the outcome, levels of compliance and costs. The methods of these reports vary. Some quantitative reports offer comparative data, showing the effects of legal assistance as compared to control groups who do not have legal assistance. None of the studies, however, effectively demonstrate that their authors were able to control for selection bias ­ that is, accounting for the fact that those chosen for legal assistance may already have had stronger cases or differed from the non-assisted group in other systematic ways. We begin this section with an in-depth examination of one comprehensive study that recently examined several of the evaluative elements of relevance to this literature review. Vera Institute of Justice, Legal Orientation Program: Evaluation and Performance and Outcome, Measurement Report, Phase II (May 2008) The US-based Vera Institute of Justice (hereafter, Vera) is currently studying the effects of a Legal Orientation Program (LOP) offered to those in detention centres. The LOP offers four levels of service to detainees: group orientations, individual orientations, self help workshops and referrals to pro bono attorneys. At no time does the LOP offer legal representation; only legal orientation. Vera conducted an evaluation of the LOP that included assessments of the program's processes, performance and outcomes. Methodology included both qualitative and quantitative data. The former included 53 interviews with LOP stakeholders including immigration judges, court administrators, detention facility staff and local employees from the US Bureau of Immigration and Customs Enforcement (ICE). It also included 33 preliminary interviews with detainees, although logistic and resource constraints prevented generalisable findings from this group, and instead resulted in the drafting of site-evaluation materials that will be used to measure the impact of LOP on detainees in the next round of funded research (Siulc et al., 2008: 17). The second part of the evaluation was quantitative, and measured the cost effectiveness of legal counselling and information, as well as compliance for those released. The study compared 7,528 detainees who participated in the LOP to more than 44,000 who did not participate, using a quasi-experimental design.20

20

The study's designers chose not to implement a randomised study (in which participants would be randomly assigned to either receive or not receive LOP training) because they did not feel it was ethical to withhold training from any detainee who could conceivably receive it. Instead the quasi-experimental design compared LOP participants at one site with three other groups: detainees who had received no legal training at the same site; those who had been processed before the start of the LOP; and detainees at other detention centres without the program (Siulc et al., 2008: 14-15).

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Vera analysed the provision of LOP services on average court time, examining three variables: type of relief application sought (no application, voluntary departure, I589s21, other applications); whether or not the detainee had legal representation; and custody status (detained or released). For each of these three variables, Vera compared the average case time in days for participants in the LOP program to comparison cases to determine the amount of case time saved or lost. Vera also estimated the cost effectiveness of its services, using order-of-magnitude calculations. The calculations assumed that the time savings in court gained from using the LOP services translated one-for-one with decreased detention time: i.e., that for each day less in court, detainees spent one day less in detention.22 Using the straightforward formula of average cost per bed per day for detainees, multiplied by total number of LOP participants, multiplied by average time savings using LOP services, and then subtracting the cost of LOP services, Vera estimated the total cost of LOP services. This analysis was completed for each application type for both represented and unrepresented LOP participants. This allowed Vera to examine which combinations of applications and representation status had the largest impact on financial cost. Speed, Costs and Compliance The most significant finding in the LOP report was that detained LOP participants had shorter average case times in immigration courts than comparison cases, for all application types. During the course of the study, the average number of case days for LOP participants was 27 days and the average number of case days for the comparison group was 40 days. Thus case time decreased by 13 days for LOP participants. The most noteworthy decrease in case times was the group who did not submit applications to remain in the US. This group decreased case time by 38% (from 24 to 15 days) (Siulc et al., 2008: 48).23 One reason offered for the reduced case times was that legal advice, even on a basic level, helps participants to better determine whether or not they have a legitimate protection claim. Those who realise they have no claim for relief then accept voluntary removal or deportation rather than remaining in detention, thus speeding the court process. Comparisons were also conducted on releasees, rather than detainees, for whom the opposite trend in court time occurred. That is, LOP participants who were released from detention (only 6.5% of all participants) had significantly longer case times (ranging between five and 85 days) than comparison cases. Here, the difference

21

I-589s are applicants who seek some form of protection: they may eventually claim asylum, withholding of removal, or withholding under the Convention Against Torture (UNGA, 1984). This corresponds broadly to what we call `protection claimants' elsewhere in this report. The authors of this report admitted that their 1:1 assumption was unlikely to be accurate, but averred that until ICE releases statistics about elapses between court proceedings and removal, they could only offer an estimate (Siulc et al., 2008: 51). When divided by application type, however, LOP participants who applied for voluntary departure had slightly longer (5%) case times than comparison groups (Siulc et al., 2008: 49).

22

23

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between legal representation and legal orientation was significant. Of released LOP participants, those with legal representation had shorter cases by 35 days than those without (Siulc et al., 2008: 55). 24 Vera expanded on its time analysis by conducting an order-of-magnitude calculation to determine the cost effectiveness of the LOP. Using a hypothetical model, Vera calculated a total detention cost savings of USD 3,329,525 (about AUD 4 million) for 2006. Subtracting out USD 1 million in costs for the program, total cost savings were calculated at USD 2,329,525 (AUD 2.77 million) for 2006 (Siulc et al., 2008: 52).25 Vera further compared different combinations of applications and representation statuses to determine for which groups cost effectiveness would be most significant. By far, the largest cost savings were found in the group that constituted the largest proportion of all participants: the unrepresented, no application immigrants (who comprised 67% of all the cases that ICE managed), with a cost savings of USD 2,226,150 (AUD 2.65 million) (Siulc et al., 2008: 51). Vera further hypothesised on additional savings that could be achieved by proposing a series of options that ICE could pursue, such as increasing the reach of the LOP program and delaying new detention centre construction. However, no quantitative analysis was provided to determine the size of savings that could be expected with these options. Because nearly all LOP participants remained in detention, the LOP report offered very little data on the subject of compliance. One statistic, however, demonstrated the importance of counselling to ensure compliance: of those released, the study found that LOP participants received 7% fewer in absentia orders, which means that LOP participants were more likely to appear for their removal hearings. Of those who were compliant, two groups had the highest appearance rates: asylum seekers were more likely to comply than other LOP participants and intensive LOP participation (individual sessions, workshops, pro bono referrals) improved appearance rates over general LOP participation (Siulc et al., 2008: 57). The importance of intensive LOP participation notwithstanding, out of 25,111 participants in 2006, only 7,598 participated in individual sessions, 981 participated in workshops, and 257 received pro bono referrals. This was surmised to be primarily due to a lack of funding (Siulc et al., 2008: 29). One of the important conclusions of the Vera study is that the LOP, and legal advice in general, is beneficial from a speed, compliance and cost effectiveness point of view for immigrant detainees as well as protection claimants. This is important because

24

This calculation was derived by taking the weighted average of case times of both groups from Figures 12 and 13, page 55 of Siulc et al., 2008. The total number of participants Vera served in the LOP program during this time period was 7,528, but only 7,036 were included in the cost calculations above because the remainder were released from detention. Because Vera could make no causal claims between participants' release and their LOP attendance, they were removed from the data set.

25

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much of the research on status resolution for non-citizens is focussed on those with protection claims, rather than on the general undocumented immigrant population. While the authors of the Vera LOP study were careful not to draw causality with preliminary data, the results thus far point to some clear efficiency gains in providing legal assistance to non-citizens with unresolved status, both protection claimants and other groups. Other Types of Legal Assistance The Vera LOP report studied one particular aspect of legal services ­ that of a legal orientation program offered to those with no legal representation. These findings also appear to hold true for legal representation in general. Several studies have demonstrated that legal representation influences the content of the outcome, as those with legal representation are far more likely to win a grant of asylum than those without. While it could be argued that lawyers choose to represent those with the strongest claims, two recent US studies collected sufficient data to demonstrate both that legal representation does have an effect on asylum grant outcomes and that the quality of the representation was also significant (RamjiNogales et al., 2007; USCIRF, 2005b).26 It is difficult to obtain data on the length of time that the adjudication process takes from first claim to final decision, so specific findings on the speed of the outcome are rare. A legal pilot in Solihull in the UK offered intensive and early legal assistance (as compared to basic or no access to legal advice later in the process).27 Of those who participated in the legal pilot, 44% concluded their cases within six months, while only 36% of non-participants concluded their cases within this time frame (Aspden, 2009: 57). While these figures indicate that legal representation speeds the process, clients were not randomly assigned to legal representation and therefore the findings do not take into account that the program provided a disincentive for lawyers to take on complicated cases or those with few remaining avenues for appeal (Aspden, 2009: 39), thus skewing the data because of selection bias. Many studies have noted that the presence and quality of legal representation increase the efficiency of proceedings, which, described in qualitative terms, ease procedural hurdles, facilitate organised claims and improve presentation of appropriate evidence (Frecker et al., 2002).28 Studies note that legal advice also helps asylum seekers

26

Nogales et al. (2007) also found that the background and gender of the immigration judge was a prominent factor in determining protection claim outcomes. The Solihull pilot also compared its compliance and costs with those of non-participants in another city, Leeds. For more information on these comparisons and about the study in general, see UK case study in Part 2. The study conducted by the Canada Department of Justice relied on 170 structured interviews of key immigration stakeholders. The study revealed mixed opinions about whether or not legal representation would improve the efficiency of the initial eligibility and admissibility interviews (i.e., at the port of entry), but for all proceedings thereafter, legal representation was almost unanimously considered an efficiency improver in the adjudication process (Frecker et al., 2002).

27

28

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determine when they may or may not have a legitimate claim, and in the latter case, allows for voluntary dissolution of the case. One report observed that a joint US government-NGO project in Arlington, VA that provides legal assistance to detained asylum seekers dissolves asylum claims at a rate of 30%, compared to a national average of 9% (USCIRF, 2005b: 247, ftn. 69). The compliance of non-citizens in appearing for hearings is a factor applicable to those individuals who are not detained. Several studies show that direct counselling and assistance of all kinds (legal, social, psychological) create relationships between clients and their counsellors and improve compliance levels (see section on Case Management). Empirical work on the subject of legal advice specifically indicates that even basic legal orientations provided to groups can improve appearance rates (Field, 2006; Siulc et al., 2008). In the UK legal pilot at Solihull, compliance was higher for participants: in the duration of the program, only one person absconded, representing 0.4% of the cases, compared to absconding rates of 6.8% for nonparticipants (Aspden, 2009: 16). There was also anecdotal evidence in this study to suggest greater acceptance of negative decisions, although the sample was too small to draw robust conclusions (Aspden, 2009: 17). Finally, while several reports have surmised that the efficiency of legal representation will improve the cost efficiency of the process (Kerwin, 2005), the difficulty of accurately calculating the economics of the immigration process has limited the number of empirical studies on the subject. Particularly in the case of legal representation, measuring costs is difficult because pro bono work is difficult to calculate per dollar. The UK legal pilot estimated that the cost of providing early legal intervention was GBP 598.76 (AUD 1,155) more expensive on average than the cost of the case of a non-pilot participant, but that most of this was made up in savings in the rate and cost of appeals. Summary Despite a consistent finding that legal assistance improves the quality of the status resolution process, many questions still remain. First, there is conflicting evidence about whether legal representation speeds or slows the current status resolution process, and about the conditions that will influence the speed of the outcome one way or the other. Second, legal assistance programs have been shown to increase or decrease financial costs, depending on how these costs are measured. Third, there is insufficient research to determine the impact of legal assistance on compliance. The aforementioned Vera LOP study exemplifies why legal assistance research may continue to be difficult. The ethics of the Vera study prevented its designers from developing and executing a truly randomised study wherein legal assistance would be withheld for some individuals and offered to others. Nevertheless, Vera's authors call for more research, particularly in the areas of speed of outcome and cost effectiveness ­ both of a qualitative and quantitative nature ­ to supplement their findings and develop causal explanations.29

29

There are several research projects whose findings will be available soon after the publication of this report. The American Bar Association (ABA) Commission on

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6.3

Video Teleconferencing (VTC)

In countries where detention centres are based in remote areas, often far from the seat of immigration judges and attorneys, one challenge to efficiency has been the need to transport claimants to courtrooms for their hearings, costing both time and money. In response, the use of video teleconferencing (VTC) has emerged, wherein the hearing is conducted by means of videoconference, with the judge in one location and the claimant in another. The prosecutor30 and the interpreter (if there is one) may be in the same location as the judge or may be in a third location. If the claimant has an attorney, s/he is usually in the courtroom with the judge, rather than able to confer with his/her client in person (Ludden, 2009). The empirical evidence on VTC is slim, but consistent. Quantitative and qualitative studies indicate that VTC reduces the quality of the status resolution process. Its use is being justified, however, because commentary pieces (no empirical studies thus far) note that it cuts costs and saves time (Leibowitz, 1998: 10; Savoye, 2001). In the US, VTC technology has been installed in nearly all immigration courts and many detention centres countrywide (EOIR, 2009). Critics have pointed out that VTC compromises due process of law by depersonalising the claimant and hindering the credibility of the case (Ellis, 2004).31 Further, technical, translation, access to counsel and evidence presentation problems were noted in an observational study of 110 videoconference 'Master Calendar' hearings in Chicago (Grant et al., 2005).32 A call for more research on the topic (Johnson and Wiggins, 2006: 211, 213) has yielded two studies of note: one psychological study on the way that VTC influences immigration judges' perceptions of the claimants (Federman, 2006: 433-434); and an empirical examination of the effects of VTC on the results of asylum claims. As explained by Federman, mediating technology such as VTC changes sensory perceptions for both the claimant and the judge/prosecutor, increasing the chances for inaccuracy and altered judgement in the claimant's presentation of the case and in the judge's decision (2006). It was further found that the use of VTC conceals non-verbal

Immigration is conducting a comprehensive examination of the US removal adjudication system, addressing issues of independence and representation. The ABA has also launched the Immigration Justice Project of San Diego (IJP), which will study the impact of pro bono legal representation for indigent claimants on higher appearance rates and a consistent adjudication process. See abanet.org for more information.

30

In the US, asylum hearings are adversarial procedures, i.e., the asylum seeker will face a DHS trial attorney who usually opposes the grant (USCIRF, 2005a: 24). VTC is being used in criminal courts as well as in immigration courts, and support and critiques come from these broader arenas as well. Master Calendar hearings are those in which the immigration judge determines whether the removal proceeding was properly commenced, examines the charges against the immigrant, schedules future hearings, and, in some cases, orders the immigrant's removal. The authors made an attempt to study a control group of in-person Master Calendar hearings, but at the time of the study there were too few in-person Master Calendar hearings taking place in the Chicago immigration courts for a control group to be feasible (Grant et al., 2005: 30).

31

32

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cues (such as body language) that are important to testimony, diminishes trust between the judge and the claimant and magnifies the power imbalance between the judge and prosecutor. While VTC increases the potential for inaccuracy in all court settings, it was argued that these problems are particularly relevant in immigration / refugee hearings, where cultural/linguistic differences are exacerbated by video (Federman, 2006). Federman's findings were confirmed and supplemented by the work of Walsh and Walsh (2008). By statistically analysing immigrations decisions in the US in over 500,000 cases, the authors found that asylum applicants who had in-person hearings were granted asylum at double the rate of those who had VTC hearings, with statistically significant results. Even controlling for the fact that applicants in inperson hearings were more likely to have representation (and thus more likely to be granted asylum) than those at VTC hearings, the study still demonstrated that VTC decreased the likelihood of an asylum grant by nearly one-half (Walsh and Walsh, 2008: 272). These correlative findings were supported by causal explanations of the subconscious bias that VTC can produce, through cognitive dissonance (because judges subliminally distrust a story told from a distance that does not evoke the emotions that it 'should') and through imperceptible delays from transmission. Thus, the authors asserted, even if judges recognise the limits of VTC, they cannot accurately compensate for its problems (Walsh and Walsh, 2008: 270). Building on the work of Haas, who noted the importance of personal testimony in immigration cases (2006: 6), Walsh and Walsh drew on the precedents of refugee case law to emphasise the frequent lack of written evidence among asylum applicants, who flee their countries without proper documentation (2008: 273). For those individuals who are particularly dependent on personal testimony to establish their claims, VTC's role in undermining credibility is particularly detrimental. The final objections to VTC are those offered in the legal literature. Several studies charged that VTC violates due process on a domestic legal front because of problems with presentation of the evidence and personal testimony (Appleseed, 2009; Grant et al., 2005; Haas, 2006). Further, VTC implicates international refugee law because asylum seekers who do not receive a fair hearing may be sent back to their countries of origin, in contravention of the principle of non-refoulement (Walsh and Walsh, 2008). Because authors recognise that VTC will continue in some form in some countries, several have offered recommendations to alleviate some of the difficulties cited above: · Where VTC must be used, it should be used in procedural hearings, and not in substantive ones (Haas, 2006: 43; Walsh and Walsh, 2008: 278);33

33

If this recommendation were accepted in the US, the government would also have to make a commitment not to make final decisions at procedural hearings such as Master Calendar hearings (Haas, 2006:43).

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· · ·

Video filming staff should be trained to reduce technical issues, court personnel should be trained in VTC standards and judges should be trained to understand its limitations (Grant et al., 2005: 52);34 VTC should only be used in merit hearings with the written consent of the claimant (Grant et al., 2005: 53-54); and VTC may be used to improve legal representation for remote claimants (Appleseed, 2009: 30).

Summary Consistent (yet sparse) findings on the negative impacts of VTC on the quality of immigration (and other types of legal) proceedings notwithstanding, it appears as though the use of VTC is set to become more prevalent. As it does, the empirical evidence surrounding its use will continue to grow. Currently, studies that compare costs and speed of VTC as opposed to face-to-face interviewing are most in need. 6.4 Visa and Immigration Regimes

National laws and policies designed to address the influx of immigrants and asylum seekers into a country are a prerogative of all states. These include the provision of specific visas and policies surrounding dispersal, assistance and employment. Given that such measures are a cornerstone of every country's immigration machinery, it is surprising that empirical work on the topic is so incomplete. There have been some studies on the impacts of such policies and programs on the individuals concerned, although these studies have often been undertaken for advocacy purposes. There is very little empirical work on the effect on compliance, cost and speed of resolution. Temporary Visas Temporary visas and the notion of temporary protection that they facilitate have received some attention and much criticism from international refugee stakeholders. On the one hand, temporary protection has been used to constructive ends in instances where individual assessments of asylum claims are impractical and untimely. On the other hand, as has been noted by the European Council on Refugees and Exile (ECRE), temporary protection has been used to deny rights on a permanent basis, leading to a potential erosion of the rights contained in the Refugee Convention (1951) and other binding treaties (ECRE, 1997). It has also been noted that temporary protection is not only used to avoid long-term obligations, but can shift the burden of responsibility by allowing governments to prioritise solutions of their choice. Implicitly, this suggests a reduced obligation to groups other than the ones that governments choose to prioritise (Fitzpatrick, 2000). Australia's efforts to formulate and reformulate temporary protection through visa options for non-citizens have been subject to some empirical scrutiny.

34

As noted above, even trained judges who are aware of the limits of VTC may be unable to compensate for bias (Walsh and Walsh, 2008).

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Temporary Protection Visas (TPVs)35 Temporary Protection Visas (TPVs) were introduced in Australia in 1999. The exact restrictions surrounding the TPV subclasses varied, but they shared common features: · · · TPV recipients could not leave the country without losing their status; they could not send for family members in their home countries; they had the right to work and were entitled to Medicare and some assistance but were denied access to Commonwealth-funded services such as English language classes, housing assistance and Migrant Resource Centre support schemes; and they were, as the name implied, only temporary in nature. TPV holders had to reapply for temporary status every three years and were discouraged from applying for permanent residency.

·

A study of 51 refugees in the Melbourne area found that a TPV policy of keeping families apart created a sense of insecurity for TPV holders and resulted in feelings of ongoing uncertainty. In addition to substantial barriers in receiving essential services, the temporary protection visa regime created a mental and material state of limbo for refugees that affected individuals and families and limited employment opportunities (Marston, 2003). In terms of employment status, over half of the refugees surveyed were unemployed and had to rely on social security benefits, which for many was a source of shame. A quarter of the respondents were employed part time or with casual work, and another quarter were minors enrolled in educational programs. Out of the 51 refugees interviewed, only four had full time jobs (Marston, 2003). A second, more thorough study of the TPV regime produced similar results. In 2006, an extensive report entitled Asylum Seekers in Howard's Australia: The Social and Economic Costs of Protection Visas was undertaken by Fethi Mansouri. One relevant section identified the effects of TPV policy on refugees, particularly the social and economic costs, including respondents' capacity to cope and integrate into the community (Mansouri, 2006). The study consisted of 120 semi-structured interviews and questionnaires with TPV holders. Results were tabulated longitudinally and geographically. Longitudinal results were compiled from three interview sessions with TPV refugees over three years, beginning immediately after release from detention. Cross-sectional results came from the experiences of respondents who lived in the metropolitan and regional centres of Melbourne, Sydney, Brisbane and Shepparton.

35

While Australia ceased the use of the TPV in 2008, the inclusion of empirical material from TPV studies is important because it communicates the effects of uncertainty, among other things, on the individuals concerned.

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RESOLVING IMMIGRATION STATUS: A review of the international literature

The longitudinal results revealed the social costs of TPVs, while the cross-sectional results revealed the fragmentary nature of services available to TPV holders. The study found that TPV holders generally found all aspects of service provision (health, Medicare, employment, housing, material aid and income support) to be inadequate. Key trends highlighted that employment and access to English language classes were particularly lacking and hardly improved over time. In the first year, 66% of respondents reported their employment as poor, and about 55% of respondents were dissatisfied with access to English language classes, material aid and income support services (Mansouri, 2006: 48). Similar trends of dissatisfaction surrounding employment and English language classes continued in the second year of the survey and dissatisfaction with employment opportunities continued into the third year (Mansouri, 2006: 49). The survey also studied the coping mechanisms of the respondents. Both the practical and emotional aspects of coping were studied (Mansouri, 2006: 53-54). It was found that, in general, individuals felt more hopeful or positive between the first and second interviews, and, notably, less hopeful between the second and third. The study noted that for some, a feeling of loneliness increased the more time was spent in Australia (Mansouri, 2006: 60). This decline was attributed to a number of factors including: lack of permanence of status, making it difficult to feel hopeful despite feeling safe; and increased pressures associated with providing for families and growing children over time (Mansouri, 2006: 60). In addition, several pragmatic problems were highlighted by respondents, including a lack of information about the reapplication process. In the Sydney area, the most frequently chosen words to describe the process of reapplying for asylum were 'traumatic' and 'sad' (Mansouri, 2006: 96).36 Bridging Visa E (BVE) Applicable to those awaiting repeal decisions, the Bridging Visa E (BVE) is similar to the TPV because of its limited assistance, but creates more difficulties for the recipient because of a general prohibition against working unless the applicant is destitute. A study by the NGO Hotham Mission identified both the program's impacts on individuals and on compliance. Hotham's Asylum Seeker Program (ASP) reviewed the circumstances of 269 cases (554 individuals) from 2001-2006. ASP found that that asylum seekers living on Bridging Visa E often live in poverty with no available mainstream support. When also combined with long waiting periods for a resolution, asylum seekers were impacted with high levels of homelessness, anxiety, depression, mental health issues, general reduction in health and nutrition and high levels of family breakdowns. Families containing single mothers and children were particularly affected (McNevin, 2005). Despite these difficulties and lack of assistance, the program reported a 100% appearance rate; not one individual absconded. It also found that of 21 refused cases, 18 (a rate of 86%) departed voluntarily (McNevin and Correa-Velez, 2006: 29).

36

Because these studies did not include control groups, they do not clearly demonstrate if negative feelings were the result of TPV or earlier trauma. See, however, a comparative study in the following section which did include a control group.

38

RESOLVING IMMIGRATION STATUS: A review of the international literature

Comparative studies Comparative studies between holders of temporary and permanent visas offer the opportunity to control for traumatic pre-arrival experiences that many asylum seekers undergo. An Australian mixed methods study focussed on Iraqi non-citizens and compared the experiences of 71 TPV holders with 60 holders of Permanent Humanitarian Visas (PHVs). PHV holders not only possessed a more secure status, but also received greater entitlements and assistance. The study found that 46% of TPV holders reported symptoms consistent with a diagnosis of clinical depression, while only 25% of PHV holders did. After controlling for age, gender and marital status, the study found that TPV status made a statistically significant contribution to psychological distress. In addition, the study found that detention and temporary status combined led to a sense of social isolation and injustice in the immigration system (Johnston, Allotey et al., 2009). These findings suggest a correlative relationship between TPVs and declining mental health relative to PHVs, but the study does not explicitly determine whether this is primarily a result of the impermanent nature of TPVs or because of poorer assistance provisions associated with the visa. Dispersal Policies Temporary protection is often paired with a policy of dispersal, wherein non-citizens are sent to outlying areas to spread out the provision of resources (housing, financial assistance, medical services, etc.). Dispersal policies have been implemented in several countries in Europe and in Australia. There is little empirical work on the cost effectiveness of these programs, other than articles that suggest that there are broad social and economic costs associated with failing to integrate refugees and asylum seekers who have been dispersed (Ager and Strang, 2008; Phillimore and Goodson, 2006: 1732). There is also no research literature that addresses the impacts of dispersal on compliance. The empirical literature focuses on the impacts of dispersal on individuals. Dispersal policies can apply to both refugees and asylum seekers, to those with temporary and permanent status. The lessons drawn from the research are outlined below. A study of Kosovar recipients of temporary protection in the UK noted that dispersal policies adversely affected employment opportunities, despite the fact that recipients were motivated to seek out all kinds of employment opportunities. In addition, it found that assistance that is linked to dispersal policies often fails because temporary protection recipients opt out of accepting such assistance in favour of remaining near friends and family, thus placing further financial strain on populations who are themselves trying to integrate (Bloch, 2001). The same Australian study that examined TPV (in previous section) also undertook research on dispersal. In-depth interviews with 32 Iraqi refugees who were dispersed to regional areas and interviews with service providers revealed that dispersal policies presented significant resource and employment challenges to the dispersed population. First, the limited regional labour market failed to provide adequate working opportunities for educated Iraqi refugees who had to rely on seasonal agricultural work to supplement welfare payments (Johnston, Vasey et al., 2009: 200). Second, the generally less culturally diverse nature of regional areas led to informal 39

RESOLVING IMMIGRATION STATUS: A review of the international literature

means of social exclusion from the community (Johnston, Vasey et al., 2009: 201). Third, there was a lack of diverse services in the social and health sectors, such as specialist health clinics, psychological counselling and domestic violence agencies (Johnston, Vasey et al., 2009: 202). These findings demonstrate the difficulties associated with dispersal policies, even for those with more enduring legal status. Interestingly, the study compared the experiences of those with temporary status and those dispersed, and found that TPV holders had had far more success in developing close relationships with members of the community, despite their impermanence. It was surmised that these bonds developed partially as a result of the opposition to controversial asylum policies, as activists, service providers and academics came together to support the vulnerable TPV population (Johnston, Vasey et al., 2009: 205). There have also been a number of qualitative studies that note the social costs of dispersal on individuals. Because dispersal regions are economically depressed and often highly volatile, hostility and prejudice are not uncommon (Zetter et al., 2002). The resulting social exclusion and isolation in local dispersal areas (Spicer, 2008) contributes to poor community relations and rising tensions (Dawson, 2002). Provision of Assistance Assistance to non-citizens with unresolved status is often provided in conjunction with temporary protection, and often coupled with case management interventions described below. The provision of assistance is a topic of much heated commentary and little empirical data. Critics charge that the provision of material assistance ­ whether subsistence allowances, medical care, housing, education or otherwise ­ is expensive, and indeed, in some countries, it can be. A recent report in the UK estimated the cost of asylum cases as part of its New Asylum Model (see Case Management section below) and calculated that providing housing and support for a family during the asylum process could cost as much as seven times as much as in cases where no housing or assistance were offered (NAO, 2009: 36).37 Yet some empirical data show that assistance to non-citizens can serve two functions: first, it can expedite the integration of those who will eventually gain residency; and second, it can serve as an incentive for individuals to comply with their immigration regulations. A study of exclusion illustrates the extent to which a lack of services can harm the chances for positive integration. In Australia, a study of asylum seeker access to health services in Melbourne demonstrated that without provision of Medicare and access to the Pharmaceutical Benefit Scheme, asylum seekers not only had declining standards of health, but also remained on the fringes of society and had problems

37

The report calculated that the cost of processing a family granted asylum in the first instance with no need for assistance would range from GBP 900 to GBP 1,700 (AUD 1,700 to AUD 3,300), while the cost of providing assistance to a family with similar claims would range from GBP 6,200 to GBP 12,600 (AUD 12,000 to AUD 24,400).

40

RESOLVING IMMIGRATION STATUS: A review of the international literature

integrating (Correa-Velez et al., 2008: 347). In one case explored, the asylum seeker in question was on a BVE for six years, had 12 months of abdominal pains and then was diagnosed with inoperable pancreatic cancer and was finally the recipient of pro bono palliative chemotherapy (Correa-Velez et al., 2008: 344). Lack of access to health requirements was noted to be an additional impediment to acculturation, and the lower quality of life from ill-health including mental health problems compounded other access challenges such as housing and employment. Analysis from Field (2006), relying on data from several European countries, indicates that material assistance, combined with other factors such as being a destination country, may result in high levels of compliance for asylum seekers (2006: 30-35). Denmark, Germany, Sweden, Finland and Austria all provide some form of material assistance for asylum seekers, and appearance rates in all countries are noted as high, although exact figures are not available for all countries. The case of Belgium provides a counter-example, however: while the country provides material assistance and housing in a similar fashion to other European countries, 52% of asylum seekers at the appeal stage absconded from January 2002 to August 2003. Field (2006: 73) cites a report by a Flemish NGO that argues that the rate was high because the government attempted to transfer asylum seekers at this appeal stage to one of four pre-removal centres, disrupting asylum seekers' lives and triggering anxieties without facilitating easier removal. In Greece and Italy, two non-destination countries, material assistance has yielded high compliance levels as well. This may suggest that even in countries where incentives to cooperate are not as great, the provision of assistance may have a positive effect on compliance (Field, 2006: 32). A study of the withdrawal of assistance to asylum seekers in the UK offers the inverse situation. A report by the Mayor of London warned that the withdrawal of support for in-country asylum applicants might have several harmful effects, including: the destitution of an estimated 10,000 asylum seekers each year, putting women without children particularly at risk; a strain on current refugee households trying to respond to the withdrawal of asylum applicant support within the community; financial and social obstacles for future integration; an increase in homelessness in the city of London; a significant work and resource burden to current social service agencies; an increase in the personal ill-health of asylum seekers, generating extra pressure on London's health services; and a reduction in community safety (Mayor of London, 2004). Advocates have built a legal case around offering assistance to asylum seekers. Commentary following Secretary of State for the Home Department v Limbuela (Court of Appeal (England and Wales), 2004) and R v Secretary of State for the Home Department, ex parte Adam (House of Lords, 2005) notes that although UK law does not require that the state provide for the destitute, there is a duty to offer assistance to asylum seekers who have no means or alternative sources of support (McAdam and Garcia, 2009: 30). Two questions surrounding material assistance require further research: first, is there an 'ideal' level provided to non-citizens, relative to poor citizens, and second, are there certain types of material assistance that are more likely to facilitate integration and compliance? 41

RESOLVING IMMIGRATION STATUS: A review of the international literature

Employment In the humanitarian aid and refugee literature, much has been written about the importance of employment and livelihood opportunities as a means to reduce structural dependency (e.g., Jacobsen, 2005). Numerous studies reveal the benefits of employment for migrants and refugees; from improving chances for integration (Edwards, 2006: 1; Johnston, Vasey et al., 2009) to advancing language abilities and raising self-esteem and developing social and community networks (Phillimore and Goodson, 2006). The coverage of the positive effects of employment on migrants and refugees is exhaustive, but there is a virtual abyss on the effects of legal employment on compliance for non-citizens. The primary consideration regarding employment for non-citizens is the argument surrounding the right to work. Article 6 of the International Covenant of Economic, Social and Cultural Rights (UNGA, 1966b) asserts the right to seek employment and article 17 of the Refugee Convention (1951) guarantees the right to work, providing 'refugees with better than the lowest common denominator of state practice, under which non-citizens are often excluded from the labour market' (Hathaway, 2005: 742). The House of Lords has recognised that denial of the right to work, where an individual is also denied social security or other support, may constitute inhuman and degrading treatment in violation of international law (House of Lords, 2005). Summary The evidence surrounding immigration and visa policies is relatively slim in light of the fact that all countries possess visa regimes of one form or another, whether or not specific to asylum seekers/refugees/protection claimants. It may be that comparative studies on temporary visas, dispersal policies, provision of assistance and employment are rare precisely because these policies represent such a wide range of possible choices, making it difficult to compare across countries. While extant findings should not be ignored, future research is recommended that: 1) studies speed, compliance and costs; 2) utilises control groups; and 3) makes comparisons among programs. 6.5 Return and Removal Policies38

The literature on the return of non-citizens is inherently linked to the question of whether return is voluntary or forced. The classification of return into three categories by ECRE provides a meaningful attempt to locate return policies in a legal and moral framework. Voluntary repatriation is defined as return that occurs when an individual has a legal basis for remaining in the host country or is undergoing asylum procedures and freely and genuinely consents to return. Forced return is defined as the return of those who are required to leave by law, but have not consented to departure, and therefore are subject to sanctions or force in order to effect their removal. Mandatory return, in between these extremes, is defined as the return of those who no longer have a protection-related legal basis to remain in the host country, and consent

38

Because this review is concerned with mechanisms for those who undergo some status resolution process, it covers neither the return of those interdicted before arrival in a host country nor those whose statuses are resolved so quickly that they are returned on the next flight or a similar path. For an excellent discussion of these groups, see Corlett (2007: Sections 2 and 3).

42

RESOLVING IMMIGRATION STATUS: A review of the international literature

without being forcibly removed, although they may be induced by threats or incentives (ECRE, 2003). Clearly, distinguishing between 'genuine' consent and consent based on incentives or threats presents a significant challenge (Corlett, 2007: 11). The fact that advocates and policymakers may interpret the same return differently is only one of the challenges of constructing return and removal policies. A second challenge lies in the fact that the literature is sparse on the empirical level. The entire issue of return policy is marred by a lack of authoritative data. First, there is a paucity of accurate information on the percentage of refused cases that comply with return orders (Field, 2006: 41).39 Second, while there are ample data on the financial incentives offered to specific groups to encourage return, these data do not include the comprehensive costs of removal, such as the costs of removing unwilling potential returnees. Nor are these data available consistently, making comparative or longitudinal research difficult.40 Third, few data are available on the duration of the removal process, which naturally includes all appeals and attempts to remain in the country. Fourth, efforts to study the effects of return on the returnees themselves are marred by several obstacles (methodological, ethical, logistical) to monitoring return appropriately (Corlett, 2007: 50). Despite these challenges, there are some studies, most notably from Australia, that have demonstrated the social, economic and personal security consequences of return. There is an acknowledgement in these works that random sampling is not possible because the total numbers of returnees is not known. Nevertheless, their findings are included in this report to showcase the types of research currently completed. Several works indicate that non-citizens in Australia whose protection claims were rejected were subsequently deported to danger (Corlett, 2005, 2007; Glendenning et al., 2004; Manne and Corlett, 2004). Others discuss the harmful health effects (Samson et al., 2007). Further, returnees are often greeted with suspicion, with deleterious effects in the social and economic realms (Corlett, 2005).41 There are a number of challenges to developing an effective returns policy. First, return policies must balance the desire to fully resolve the cases of non-citizens with the obligation to honour the internationally recognised principle of non-refoulement, that is, the right not to be sent back to a country of persecution. Second, policies that enforce involuntary return attract unwelcome media attention (Koser, 2001: 13).

39

Field notes that `calculating the gap between the numbers rejected and those deported generally results in an extremely crude figure which does not take account of those whom it is impossible to deport... those who may still have appeals against their deportation pending or who may have been granted a subsidiary status, nor those who may depart without notifying the authorities' (2006: 41). For example, one study noted that Germany spent USD 6 million (AUD 6.8 million) to deport 25,000 individuals in 2000 (Gibney and Hansen, 2003: 11). A recent report by the UK National Audit office estimates the cost of removals for 12 different `profiles'. For more information, see below, under costs, and in Part 2, UK case study. Another important point, although one outside the scope of this paper, is that assisted return programs can benefit returnees while providing nothing for those communities to which they hope to return, causing potential rifts in the countries and communities of return. See, for example, Koser (2001: 30).

40

41

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RESOLVING IMMIGRATION STATUS: A review of the international literature

Third, there are logistical and administrative challenges, such as the difficulty of booking both an escort and a flight simultaneously and a lack of flexibility on the part of airlines to change names on tickets (PAC, 2006: 24). Return policies are also complicated by the relationship that host governments have with countries of origin, which are often unwilling to accept back their own citizens. It has been noted that establishing the nationality of a non-citizen and securing the appropriate identity documents that facilitate return are time-consuming processes (ICMPD, 2002: 21). Some reports, described below, discuss the motivations that explain returnees' willingness to return to their countries of origin, and these motivations offer a framework for policymakers to think about how they might want to structure a removal. Motivation and Compliance For non-citizens whose applications to remain in the host country are refused, detention and other restrictive policies are often justified in order to ensure availability for removal and compliance with removal. Indeed, a comparison of absconding rates across countries demonstrates that they are universally higher for individuals who know that they will be removed than for those attending non-removal hearings (e.g., Field, 2006). Yet several global examples indicate that detention is not always necessary to achieve compliance. In Australia, the US and Canada, pilot projects worked with non-citizens soon to be removed and provided various measures such as counselling, support with the logistics of return, discussion of return options and assistance with informing government authorities about the details of the departure. These programs yielded compliance rates from 60% to 80% and helped participants return home in a dignified way (Field, 2006: 41-42). Other programs, such as one in Germany, ended all assistance with the final refusal decision. Although this was aimed at encouraging individuals to depart, it was less effective in ensuring compliance, as individuals were more likely to become itinerant without employment or assistance (Field, 2006: 43). An empirical study exploring the decision-making processes of refugees and asylum seekers shed some light on motivations behind those who participate in voluntary return, specifically participation in the UK-based Voluntary Assisted Return and Reintegration Programme (VARRP). The study's researchers conducted seven focus groups and interviewed 43 potential returnees and 64 individuals who had already returned to Bosnia or Kosovo, as well as conducting interviews with key stakeholders. The 64 returnees were not a representative sample of all non-citizens; most had secure status in the UK and had been educated to at least high school level (Black et al., 2004: v). The study found that the lines between voluntary and involuntary return were not always clear and that policies that encouraged non-citizens to depart often moved dangerously close to policies in which non-citizens felt that they had to leave (Black et al., 2004: 40). Further, the study noted that the considerations that seemed to have the greatest effect on individual decisions to remain or depart were not related to host country conditions or other pull factors, but rather were related to conditions in the country of origin (Black et al., 2004: 40). It was observed that assistance in returning home was not a 'fundamental factor' in the choice to depart, but was considered useful 44

RESOLVING IMMIGRATION STATUS: A review of the international literature

to reintegration once the decision to return had been made (Black et al., 2004: 41).42 The study also found that restricting employment in the UK did not increase the likelihood of return (Black et al., 2004: 16). The study recommended further research into the role that family and community ties in both the country of origin and the host country can play in the decision-making process (Black et al., 2004: 42). Costs The financial costs of return, particularly of assisted voluntary return and involuntary return, have been subject to some review in recent years. A recent report estimating the cost of various asylum profiles applied through the New Asylum Model calculated that returning non-citizens to their home countries was far more financially costly than granting asylum. For example, the following estimates were calculated on the upper end of the cost scale: a single adult granted asylum in the first instance requiring housing and assistance was estimated to cost the United Kingdom Border Agency (UKBA) GBP 5,000 (AUD 9,700), while that same adult who returned voluntarily after a second appeal would cost GBP 23,700 (AUD 46,000) and that same adult would cost the UKBA GBP 25,600 (AUD 50,000) to be removed involuntarily after appeal rights were exhausted (NAO, 2009: 36). Similar patterns emerged with estimates applied to families and unaccompanied children: in all cases, enforced return was calculated to be the most expensive option (NAO, 2009: 36). While these 'typical profiles' do not have an empirical basis, the estimates are important because they demonstrate the cost efficiency argument for encouraging voluntary returns over enforced removals. Factors contributing to successful return policies Drawing together best practices from several European countries, a 2001 comparative report examined several voluntary return programs, particularly French, Dutch and British models of return, and return that focussed on Kosovar and Bosnian asylum seekers (Koser, 2001). The report relied on existing evaluation documents and supplemented these with interviews with key stakeholders. Like the Black et al. Report (2004), its findings indicate that conditions in the country of return outweigh the incentives or disincentives in the host country. Though much of the report refers to outdated European immigration policies, its suggestions are presented here to supplement a limited empirical record. According to the report, an effective voluntary returns program must: enact holistic policies that gain the cooperation of the country of origin; encourage coordination between government ministries and other agencies; include migrant communities and local NGOs; monitor return; limit alternatives to return programs; and use assistance or its lack as a means to provide incentives for individuals to return home. The study promoted future research concerning information on conditions in the country of origin, indicating that policy decisions about the efficacy of voluntary return without

42

For individuals who paid tens of thousands of dollars to get to the UK, for which a debt often remained, a financial incentive offering only a fraction of that to return home was noted to be a waste of time (Black et al., 2004: 17).

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RESOLVING IMMIGRATION STATUS: A review of the international literature

an understanding of country of origin circumstances missed the broader question of sustainability for both returnees and country of origin stakeholders. Summary The highly charged topic of removals has thus far been accompanied by a limited number of high quality reports whose main messages are that: 1) return programs have numerous logistical, ethical, and cost challenges; and 2) conditions in the country of return are the most important factor in determining successful return policies. These elements point to the particular need for future research on structuring removals that ensure safe and successful integration in the country of return. 6.6 Supervised Release

Supervised release ­ which is, as the name suggests, some combination of reporting, monitoring or supervision ­ has been widely touted among advocates as an alternative to detention. The limited empirical record indicates that supervised release can ensure relatively high levels of compliance and reduce costs, if the mechanism is applied to those who would have been otherwise detained. There is only one comprehensive study examining the effects of supervised release (Sullivan et al., 2000a, 2000b). The US-based Vera Institute of Justice (hereafter, Vera) instituted a pilot program in New York City, the Appearance Assistance Program (AAP), that offered 'community supervision' to those who would otherwise have been detained. Vera not only studied the effects of supervised release (both regular and intensive supervision), but, importantly, compared these results to control groups. This is one of the few studies in this entire literature review to offer comparison research between two different cohorts. The study is described in detail below. Vera Institute of Justice, Testing Community Supervision for the INS: An Evaluation of the Appearance Assistance Program (AAP) (August 2000) AAP compared non-citizens who were either released from detention or never detained, under the condition that they followed certain reporting and supervision rules. Vera studied three components of supervised release relevant to this study: its effects on individuals, its compliance and its costs. The results indicate that, overall, supervision of released detainees can maintain high levels of compliance and save resources (Sullivan et al., 2000a, 2000b). AAP ran from February 1997 to March 2000 and involved 534 participants and tested the appearance rates of three groups: 1) newly arrived asylum seekers;43 2) people subject to removal based on criminal convictions (hereafter referred to as 'criminal non-citizens';44 and 3) undocumented migrants arrested at their workplaces. Thus the

43

The US Government only approved AAP to work with the asylum seeker group in August 1998, when the pilot program was halfway completed. More than 95% of the persons in this group were lawful permanent residents of the US, many of whom had resided in the US for decades and had relatives who were US citizens.

44

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project accounted for differences in motivation and circumstance that characterise different groups of non-citizens. Further, AAP offered and tested two levels of supervision: intensive, which was geared toward those who would otherwise have been detained, and regular, for those who would not have been detained in the absence of the program. To qualify for the intensive supervision track, candidates had to demonstrate former compliance with any prior reporting requirements, absence of threat to public safety and community ties, including a place to live. Verification of community ties and a 'designated guarantor' were also required. Candidates who met the above criteria were recommended for release by AAP, and if approved by the Immigration and Naturalization Service (INS),45 released without bond. Intensive supervision until the participant's hearing included mandatory personal and telephonic reporting requirements to the AAP, visits to the participant's home address (both prearranged and unannounced) and disclosure of employment, even if unauthorised. Violation of supervision could result in a recommendation to the INS to re-detain the participant. Those in the regular supervision track had fewer obligations and little supervision. Participants merely had to attend an orientation session and show a verified address. They received mail and telephone reminders of their court dates and legal obligations and were not penalised for discontinuing participation. Both intensive and regular participants received support from the AAP as a positive inducement to comply with their legal obligations. A Resource Center open to both groups provided information about the US asylum system, country of origin conditions, referrals to language classes, food pantries, health clinics and other social services. Compliance The AAP project compared the appearance rates of its participants with control groups who were released on bail or on their own recognisance. It found that 91% of people who received supervision attended all of their hearings, compared to 71% of the control group. The appearance rates for each participant group are found in Table 1.

They were often arrested for minor convictions and if not for this program would have been detained until their proceedings were completed.

45

In 2003, the INS was disbanded and most of its functions dispersed into the newly-created Department of Homeland Security (DHS).

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RESOLVING IMMIGRATION STATUS: A review of the international literature

Table 1: AAP Appearance Rate (% who attended all their hearings)46 47 Intensive Supervision (%) 93 Control Group (%) 78 Regular Supervision (%) 84 92 59 Control Group (%) 62 82 55

Asylum Seekers Criminal Non94 77 citizens Undocumented 88 59 Migrants All Supervised (Intensive and Regular) 91

All Control Groups (No supervision) 71

A comparison of compliance levels across groups yielded the following conclusions: · The 71% appearance rate for the control group indicates that even those who received no supervision whatsoever were willing to attend immigration hearings without being detained. In particular, the appearance rates for unsupervised asylum seekers (ranging from 62-78% for low and high priority asylum seekers, respectively) and unsupervised criminal non-citizens (ranging from 77-82% for high and low priority asylum seekers, respectively) highlight that detention is often unnecessary to ensure compliance. · Intensive supervision greatly improved appearance rates for all three participant groups, and had the most effect on undocumented migrants ­ those who had the least chance of winning their cases and were hence less likely to appear. · For asylum seekers and criminal non-citizens, the difference in appearance rates between intensive supervision and regular supervision was relatively small, suggesting that for these groups other factors (discussed below) contributed more to compliance than an intensive supervision program that requires staff and funding.48

46

Data for this table were collected from Sullivan et al. (2000a: 27-46). In order to control for selection bias, there were separate control groups for both intensive and regular supervision. For example, without two separate controls, one might charge that high compliance in the Regular Supervision category was the result of participants being selected for this group because they were a lower flight risk. Instead, participants in each group were divided into high and low priority groups, and control groups were established from these. As indicated, the data in Table 1 represent the percentage of individuals who appeared for all of their hearings. The study in fact collected data on the appearance rate of every hearing, from the first to as many as the seventh. The appearance rates of earlier hearings are slightly higher, but not greatly different from the results for the final ­ and thus, all ­ hearings. For example, as compared to the bottom line of Table 1, the appearance rate for the third hearing for all supervised was 92% and for all control groups was 75% (Sullivan et al., 2000a: 3). It was also noted that a sub-group of the asylum seeker control group had a low level of compliance because they had the clear intention of transiting to Canada. If this sub-group were to be subtracted from the calculation, the compliance level of the unsupervised asylum seekers would almost exactly match the compliance level of asylum seekers under regular supervision, further highlighting that those with natural incentives to comply with immigration requirements (i.e., those seeking protection) generally require little, if any, supervision (Field, 2006: 231).

47

48

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AAP also found that individuals whom the government claimed had absconded prior to their deportation, had, contrary to this claim, left the country, as witnessed by AAP staff (as cited in Field, 2006: 239, ftn. 41). Contributing Factors While supervision itself undoubtedly improved appearance rates of all three groups, Vera's own analysis revealed other underlying factors: · For all three groups, the strength of family and community ties was more significant than supervision, as demonstrated by the fact that AAP participants and control group members with equivalent community ties attended their hearings at similar rates (Sullivan et al., 2000a: 7). Vera's contribution to this factor was that it had a very careful screening process for ensuring real community ties. It was also noted that, theoretically, the project's contact with friends and family would also be useful to trace and re-detain absconders if there was the will to do so (Field, 2006: 234). For asylum seekers especially, AAP's efforts to explain (and not just provide) information about the hearing process helped improve appearance rates, because asylum seekers subsequently understood, for example, that their nonappearance would lead to a removal order in absentia.49 In addition, the fact that most asylum seekers had lawyers not only improved asylum acceptance rates, but also compliance (Field, 2006: 232). For undocumented migrants and criminal non-citizens, AAP's help with departure planning and verification was important because these groups wanted to ensure that they departed the US legally and hence could preserve the possibility of returning to the US legally in the future. AAP helped with obtaining travel documents, buying tickets, explaining how to confirm departures to the INS and obtain their bond deposit after their departure (Sullivan et al., 2000a: 16). The role of the 'designated guarantor' with a similar language and culture as the participant proved that it was possible for an agency to create community ties artificially, although it has been noted that this aspect of the program may be difficult in regions (other than New York) where those with linguistic and cultural similarity may be difficult to recruit (Field, 2006: 234).

·

·

·

Costs50 The AAP also measured the financial costs of its program, comparing the financial cost of detention to: 1) the estimated cost of intensive supervision; and 2) the estimated cost of detention followed by release on bond or parole (hereafter referred to as 'parole/bonded release'.51 For detention costs, the study relied on INS' figure of

49

AAP staff members were not permitted to give legal advice to participants, but could correct misinformation. Unless otherwise noted, the costs in this section come from chapter 5 of Sullivan et al. (2000a). Vera did not analyse the cost of regular supervision.

50

51

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USD 61 (AUD 73) per day,52 and for intensive supervision, estimated a figure of USD 12 (AUD 14) per day, taking into account the costs of labour, rent/utilities, technology, vehicles and other equipment and interpreter services. For the category of detention followed by release on bond or parole, the average amount that the INS recovered from breached bonds was also included (Sullivan et al., 2000b: Appendix V). Because the three groups of participants, on average, spent different lengths of time in detention or in legal proceedings, the AAP measured costs differently for each category. AAP estimated that in the case of asylum seekers, the cost of intensive supervision (average USD 3,310 (AUD 3,940) per person for the duration of the proceedings) was the least expensive option, less than half the cost of detention (USD 7,259) (AUD 8,636) and about 80% the cost of parole/bonded release (USD 4,233) (AUD 5,036). For criminal non-citizens, by far the least expensive intervention was parole/bonded release (USD 238) (AUD 283) because the bond posts were high and thus breach fees were also high (estimated at USD 3,730 (AUD 4,443) per person for the duration of the proceedings) (Sullivan et al., 2000b: Appendix V, p. 5). For this group, intensive supervision (USD 3,871) (AUD 4,611) accounted for 85% of the cost of detention, at USD 4,575 (AUD 5,450). For undocumented migrants, the cost of intensive supervision (USD 3,809) (AUD 4,531) per person for the duration of the proceedings was about three times more than detention (USD 1,098) (AUD 1,306) because detained undocumented workers who voluntarily return to their home country generally spend very little time in detention. This explains why parole/bonded release was the least expensive option for undocumented migrants as well (USD 931) (AUD 1,107). The AAP cost data most strongly reveal the potential cost savings of offering alternatives to detention to asylum seekers. In further analysing these costs, Field estimated that community alternatives for asylum seekers could cut costs by a third (2006: 250). It was also noted that a supervision program that would maintain a high appearance rate among asylum seekers (eliminating a labour-intensive reporting requirement which was found to be unnecessary), including the cost of a brief period of detention at the point of arrival and the cost of possible re-detention immediately prior to removal, could be offered at USD 2,626 (AUD 3,128) per capita, as compared to USD 7,259 (AUD 8,636) for the cost of detention (2006: 250). Effects on Individuals AAP also conducted 40 interviews with AAP participants to obtain information on the reasons for compliance. These interviews indicated several positive elements as a result of the program. First, through AAP's counselling, participants were more likely to understand the US criminal justice system (Sullivan et al., 2000a: 56). Second, the attention and concern that AAP staff demonstrated for participants reduced their alienation in the US and additionally made them feel respected and boosted their

52

The cost of detention in 2008 was estimated to be USD 95 (AUD 113) per day (HRF, 2009: 1).

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RESOLVING IMMIGRATION STATUS: A review of the international literature

confidence, whether they remained in the US or returned home (Sullivan et al., 2000a: 58). Finally, the bonds between AAP staff and participants that formed as a result of the program created a feeling of obligation in AAP participants to comply with the law, both to preserve their relationships and to ensure the continuation of the program (Sullivan et al., 2000a: 58). As already noted, the Vera AAP study remains the only major comprehensive empirical research project to study the impacts of supervised release. Other Supervised Release Programs General statistics from other programs support the notion that supervised release ensures compliance while remaining relatively cost effective. In Canada, for example, the Toronto Bail Program (TBP) is a combination bail/supervision program that posts bail for its participants and then supervises them through bi-weekly reporting requirements, home visits, social counselling and requirements to work or study. Other types of assistance, such as legal advice and housing referrals, are also available. When last reported, the appearance rate for TBP participants (20% of whom have a significant history of non-compliance) was above 90%, including removal orders (Field, 2006: 87).53 In the US, the Intensive Supervision Appearance Program (ISAP) allows participants to be released into the community, subject to early strict reporting requirements, which diminish over time. The program relies on an Electronic Monitoring component, which has been criticised for its intrusive quality. No cost estimates are available, but currently ISAP yields a 95% appearance rate at final removal hearings and a 91% appearance rate with removal orders (ICE, 2008). While little empirical data exist, it has been noted that less restrictive reporting requirements and the deposit of travel and identity documents for those who have them are both simple and cost effective means for maintaining high levels of compliance (Field, 2006: 35). Summary Despite a careful methodology and clear findings, Vera's report on the AAP was virtually ignored because it was published just before September 11, 2001. Thus, the best empirical study on the topic was ignored in the context of larger political concerns. Nothing nearly as extensive has been produced since, leaving a significant gap in the evidence. Vera's AAP program and the study's methodology could be replicated elsewhere and such a study would add considerably to our knowledge of the appropriateness and effectiveness of supervised release. Such a study would need to employ a rigorous methodology to ensure that effectiveness, costs and impact on individuals were accurately gauged.

53

See Canada case study, Part 2.

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6.7

Release on Bail

Release on bail offers a relatively cost effective method for ensuring compliance and permitting release at the same time. Two studies of note offer statistics on compliance and costs. First, in a study of 98 detainees released on bail between July 2000 and October 2001, Breugel and Natamba found that 90% met their bail conditions in pre-removal hearings. Further, of those awaiting removal or deportation, 80% complied with their orders. Calculating the costs of detention for the average of 16 weeks for which detainees remained in detention, Bruegel and Natamba argued that 'the Home Office needlessly spent GBP 430,000 to GBP 1.9 million (AUD 833,000 to AUD 3.7 million) on detaining seventy-three asylum seekers who, on the evidence, would have remained in contact with immigration' (Bruegel and Natamba, 2002: 15). Another report offers slightly lower appearance rates of 78% but confirms the general pattern that release on bail ensures relatively good compliance (Asylum Welcome, n.d.: 11). While not empirical, several reports on bail noted problems with implementation, including the non-release of asylum seekers with extensive poor health and mental illness symptoms (Cutler, 2005: 8) and the need to complete multiple applications in order to be released on bail (Asylum Welcome, n.d.: 25). More positively, in one study, 57% of applicants were granted bail, reflecting a presumption in favour of the practice (Asylum Welcome, n.d.: 24) and it was noted that bail amounts have decreased to make them more manageable to asylum seekers, from an upper level of GBP 6,000 in the late 1990s, to 30% of cases under GBP 100 (AUD 194) and 50% under GBP 200 (AUD 388) in 2003 (Asylum Welcome, n.d.: 26). One report documented inconsistencies in bail applications, including both detainees and advocates being poorly informed about both the processes and likelihood of success (Jackson, 2003: 120). A number of examples of inconsistent decisions to detain or permit bail were cited, including half a family being detained and the other half being permitted to settle in the community while all were awaiting status decisions (Jackson, 2003: 120). The report points out two very important elements for any evaluation of the bail process in England. First, evaluations must consider the stage at which bail is being offered; currently, detention is being used at different stages of the asylum process and not simply at 'Removal Centres' prior to deportation, which complicates any evaluation of bail as a mechanism (Jackson, 2003: 119). Second, evaluations should address the current lack of detailed empirical research querying which asylum seekers or detainees would be the best candidates for bail, that is, individuals who remain in contact with the immigration services and are a low flight risk (Jackson, 2003: 122). Summary It is likely that government agencies have the data that are needed to analyse some aspects of bail programs, particularly compliance levels and costs. Such data could help to improve the quality of current research on bail, much of which is currently produced by NGOs with clear advocacy foci. The collection of such data to inform empirical research on bail would provide relatively easily collected and useful

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information on one mechanism for status resolution that is believed to be less costly than others. 6.8 Unconditional Release

There is, of course, another type of release: unconditional. It can be assumed that this is the least expensive option and does the least harm to non-citizens. With the exception of the control groups in the aforementioned AAP report, there are no empirical studies on speed of resolution or compliance for this population. Field notes that for asylum seekers, unsupervised or unconditional release should be the 'normative starting point against which all other measures ought to be compared in order to assess their legality' (2006: 23). 6.9 Case Management Models

One emerging mechanism for resolving immigration status that several countries employ is case management, broadly described as programs that provide non-citizens individualised attention and forms of assistance. Different case management models vary in their content and scope, but all include some combination of material, social, legal and psychosocial assistance. Case management can be broadly placed into two categories: · · Community-based models, which rely on community organisations and networks to create ties with the community; Administrative models, which employ case workers to oversee the administration of assistance and status resolution.

Currently, case management models are limited in scope and practice, and few empirical studies exist. Those that do are discussed below. Community-based Interventions Community-based interventions may be state-funded or locally-funded, may begin early or late in the immigration status resolution process, may or may not include some restrictions on movement, and they may or may not include individual case managers. This diversity, and the fact that the empirical research on these interventions is relatively limited, makes it difficult to draw generalisable conclusions about impacts and effects. A guiding principle behind most community-based programs is the aim to build trust and ensure dignity, whether the individual eventually remains in the country or returns home.54

54

This definition builds upon two prior ones that emphasise the community aspect of case management. Field describes community-based programs as those 'that facilitate ties in the community, in combination with the provision of good asylum lawyers and the meeting of basic needs' (2006: 237). While most community-based interventions provide legal representation, not all do. Mitchell's definition, 'the practical measures implemented by States that ensure and protect individual freedom of movement in the community, and which are only used for individuals normally subject to immigration-related detention' importantly refers to these measures as an alternative to detention, but refers only to governmentsponsored programs (Mitchell, 2009: 3).

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Case management models with community ties are widely understood to be more humane than detention (DWG, 2008; LIRS, 2009). It has also been noted that such programs stabilise psychological and health issues (DIAC, 2008: 3). There is little empirical data to support these findings directly, although studies on the deleterious effects of detention (see Detention section) would suggest that case management alternatives are preferable. One study (Mares and Jureidini, 2004) showed improved wellbeing when children were released from detention into the community. As previously noted, those interventions that permit participants to work are particularly noted for ensuring the dignity of participants and enhancing their self-respect, as well as improving their chances for integration, whether they remain or return home (Edwards, 2006: 1). On issues concerning effectiveness, the literature reveals that case management interventions yield 'effective' compliance, which is defined by Field as an appearance rate of over 80%.55 The report with the most rigorous methods measuring compliance is the Vera report on the AAP, which is discussed in detail in the previous Supervised Release section. Participants in the US-based 3-year program received legal referrals and access to a Resource Center, as well as being supervised. Vera found that 84% of asylum seekers in regular supervision appeared at their hearings (Sullivan et al., 2000a, 2000b). Field's study of alternatives to detention provides information through its country profiles about the compliance levels of various community-based interventions as applied to asylum seekers (as opposed to all non-citizens with unresolved status). The report identifies several small but successful initiatives: · In Canada, three asylum shelters that provide accommodation and a range of referral services all had appearance rates of over 99% through the asylum procedure (for more information, see Canada case study, Part 2.). Managers of the shelters attributed these impressive compliance levels to the presence of community ties and high levels of trust engendered by the programs. (Field, 2006: 90-92). Similarly, in the US, several case management interventions ­ including asylum shelters and programs that offered legal and housing referrals ­ all had appearance rates of 98%, but participation in all programs slowed in the aftermath of tightening immigration controls following September 11, 2001 (for more information, see US case study, Part 2).

·

Reports on case management interventions in two other countries support these findings: · A case study of Sweden's intervention for asylum seekers ­ which includes open hostel living and case workers who provide assessment, medical referrals, counselling and access to legal information ­ showed that

55

Field derived the 80% figure from the criminal justice field, which suggests that compliance rates for felons generally range from 40-70% (2006: 24). This percentage was also used as an acceptable rate by the Commissioner of the (former) Immigration and Naturalization Service (INS) for a release program in NYC (Field, 2006: 249).

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·

participants displayed higher levels of compliance after the model was implemented than before (Mitchell, 2001).56 (For more information, see Sweden case study, Part 2). Australia's recently completed pilot program, the Community Care Pilot (CCP), which offered community assistance, immigration advice and information to vulnerable non-citizens (not only asylum seekers), resulted in a 93% compliance rate, with 60% of those not granted a visa to remain in the country voluntarily departing. A similar program for non-vulnerable individuals, the Community Status Resolution Service, resulted in a 95% compliance rate, with 74% of those not granted a visa voluntarily departing (Mitchell, 2009: 8). (These pilot programs ceased on 30 June 2009 and were replaced by a national program, Community Assistance Support, which will continue to provide community support to the Department's most vulnerable case-managed clients. Funding has already been provided for the next four years.)

The evidence on cost effectiveness of case management interventions is extremely sparse. Cost effectiveness has proven difficult to measure, because many small programs with high compliance levels do not provide information about their costs. It is certainly clear that these programs minimise costs to the government, but less clear exactly how the burden is shifted. The Vera AAP program (see section on Supervised Release) estimated that its program cost 55% of the cost of detention (Field, 2006: 231). These costs included a labour-intensive supervisory element that some community-based programs do not require. Australia's CCP produced even more impressive cost savings. Detention has been estimated at AUD 45,000 per year per person, while the CCP, at AUD 5.6 million for 400 participants, has been estimated to cost only AUD 15,000 per year per person (Mitchell, 2009: 11). While these statistics make a strong argument for community-based interventions, the variety of provisions among the programs and the diversity of circumstances within host countries make it impossible to draw direct causal links between these programs and high compliance levels.57 Furthermore, because there are so little data globally on compliance, it is impossible to judge whether all community-based interventions yield high appearance rates, or if this is only a phenomenon of the case studies presented in the literature. Finally, there is not enough information about the effects of communitybased interventions on non-asylum seekers.

56

In a follow-up paper Mitchell also noted that in 2001 Sweden had the highest levels of return on refused asylum seeker cases in Europe, with 76% voluntarily departing (Mitchell, 2003). For example, it has been noted that there is a direct correlation between high rates of refugee recognition and high appearance rates, because asylum seekers who believe that they have a good chance of being granted asylum are less likely to abscond (Field, 2006).

57

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RESOLVING IMMIGRATION STATUS: A review of the international literature

Administrative Case Management The second type of case management model is administrative case management, whose main proponent is the New Asylum Model (NAM) found in the UK. The New Asylum Model, discussed extensively in the UK case study in Part 2, is currently operating throughout the UK and works with recent protection claimants ­ that is, those who are not backlogged legacy cases. The goal of NAM is, by 2011, to resolve 90% of all cases within six months. After being screened, claimants are placed into one of several categories depending on the circumstances of their claim. Those whom the UKBA believes have a high likelihood of being rejected are placed in detention. Others are dispersed ('routed') throughout the UK, given housing and assistance if eligible, but prohibited from legal employment. The NAM assigns each protection claimant a 'case owner' who administers the case from its post-screening inception to the decision of the case. For those whose asylum applications are accepted, the case owner continues to locate services in the community to facilitate further integration. Some of those whose claims are rejected post-dispersal are placed in custody until their removal. Those with rejected claims who cannot return home are generally given a separate form of public assistance. NAM is a relatively new model and has only yielded two reports thus far on its consequences, both produced by government offices. The reports focus primarily on NAM's impact on effectiveness, but there is also preliminary information about its effects on the participants themselves. Impact on individuals NAM's emphasis on speed has first and foremost been noted as having questionable consequences on the just resolution of status. First, NAM's goal of rapid resolution has resulted in applicants failing to receive a complete screening interview in 25% of cases, resulting in an absence of valuable information about the claimant (NAO, 2009: 10). Second, the process does not have mechanisms for checking the quality of current decisions other than through appeals. Of those whose cases are rejected, about 70% pursue an appeal, of which 20-25% are upheld (NAO, 2009: 9). The fact that the appeals process reverses so many original decisions indicates that the check is effective and needed, and may also indicate that the decisions in the first instance are failing to approve many legitimate cases. This requires further study, however. Speed and Costs Research thus far has shown that in terms of efficiency, the program has mixed results. On the one hand, the resolution of some cases has met the UKBA's improved timeframes, with an average case time for all participants at seven months (PAC, 2009: 11). From Jan 2007 to June 2008, case owners had made a decision on 16% of their cases within 30 days and a further 17% of cases were decided in 30 to 60 days (PAC, 2009: 11). This represents a marked improvement in the speed of resolution as compared to pre-NAM processes, but no data are available for exact timeframes. On the other hand, the incentive structure of the model discourages case owners from working to resolve complex cases. The goal of resolving 90% of cases within six months means that case owners give low priority to cases they believe will take longer 56

RESOLVING IMMIGRATION STATUS: A review of the international literature

than the six-month target, slowing these cases even further and leading to cost inefficiencies (NAO, 2009: 9). Aforementioned difficulties with the decision process have also increased costs because a significant portion of claimants (70%) pursue appeals (NAO, 2009: 9). In contrast to an increase in costs in processing due to a lack of efficiency, the program has experienced a significant decrease in costs in asylum seeker assistance due to cuts to that program. From 2003-2004, when the costs of accommodation and welfare for all asylum seekers was GBP 1 billion (AUD 1.9 billion) for all asylum seekers, costs have decreased by nearly 50% in 2007-2008, to GBP 510 million (AUD 966 million) (NAO, 2009: 9).58 Thus far, the program has not been evaluated for compliance regarding appearance rates. Preliminary data on removals, however, reveal that, since NAM began, the number of removals has not increased (an expected outcome of moving through cases more quickly), but rather has dropped slightly (NAO, 2009: 23).59 The lack of detention bed space has been cited as the reason for the slow removal process, indicating that rapid legal resolution of status alone does not ensure final resolution of individual cases. Summary Limited evidence offers the tentative suggestion that case management approaches may be able to resolve many of the issues for status resolution, and that optimal models may provide the best combination of human rights, cost, speed and compliance. However there is an urgent need for further rigorous empirical research on case management models, particularly given that Australia has adopted this approach to status resolution. The reports that currently exist on community-based models are outdated or limited in scope. The recent study of the NAM offers some useful data on costs and preliminary information on the speed of the process, but more research is needed. In particular it would be important to develop a longitudinal study that would compare different models of case management and their effects on compliance, speed, cost and their effects on individuals.60

58

These figures include both NAM participants and legacy cases. The drastic decrease in assistance costs have come about because the UKBA has prioritised for decision legacy cases on public assistance. One report also estimates the cost of NAM in 2007-2008, dividing the costs into the four stages of the process. The report estimated that all four stages, for about 23,000 claimants, totalled GBP 176 million (AUD 341 million). For more information, see NAO (2009: 14-15). From January 2007 to February 2008, of a total of 25,529 asylum applicants, 13,869 were refused asylum and 3,455 of these were removed (involuntarily) from the UK (NAO, 2009: 24). A researcher from the International Detention Coalition is about to embark on a field-based project to study precisely various case management models globally. For more information, visit www.idcoalition.org.

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7

Deterrence

Much immigration enforcement policy revolves around the notion of deterrence. As is evident in most empirical studies and noted by Field it is difficult (and no studies have yet attempted) to tangibly measure the effects of particular policies on deterrence and thus on future migration flows (Field, 2006: 251). A brief examination of deterrence literature is included below. The capacity of any policy to have a deterrent effect is based on an expectation of: a) the individual needing to be deterred, which in the case of refugees is an area in which a number of legal opinions offer some important judgements as to the legality and morality of deterrence as a goal or consequence of policy; and b) that the prospective claimants know enough or have access to enough information to be deterred. There are few studies that examine whether deterrence actually works. One of the most important surveys undertaken has been the 2002 Report by the UK Home Office entitled Understanding the decision-making of asylum seekers, which challenges whether policy can ever truly have a deterrent effect, given that so few asylum seekers seemed to know much about the process upon arrival. The survey consisted of 65 respondents, in 63 households, with interviews with interpreters if required, each interview between 80 and 120 minutes (Robinson and Segrott, 2002: vii). The first important finding from the research is the significant presence of agents in the migration and decision-making process.61 Of the 65 respondents, 42 (65%) had been assisted by agents in their passage, accounted for mainly by Sri Lankans and Iranians (Robinson and Segrott, 2002: 19). The assistance from agents varied. Often agents served the duties of a travel agent securing tickets or passports, real or false. At other times agents travelled part of the way with their customers. Some agents advised on prospective destinations (Robinson and Segrott, 2002: 19-20). The report noted the relative inequality between the agent and the individual, and also the relative circumstances of the individuals affecting the relationship and expectations of the agent (Robinson and Segrott, 2002: 26). There are not uniform conclusions about the inherent positive or negative value of agents, but the report recognises that there are times when agents play a significant role in directing migration flow toward or away from a particular destination, and that cost can be an overriding determinant of destination (Robinson and Segrott, 2002: 25-26). This flags an important field demanding further research, and research in an Australian context, about the role of agents and what capacity they have to influence the individuals or to affect the deterrence of immigration policies. The report also concluded that there was a lack of knowledge about the asylum process, and that the 'detailed knowledge of asylum procedures or perceived weaknesses in these procedures were less important reasons for the respondents

61

Robinson and Segrott define agent as 'someone who assists asylum seekers (and perhaps other migrants) to leave one country and gain entry to another in exchange for a (one-off) financial reward. Agents are different from traffickers since the latter exploit the migrant and transport them to another country for continued financial gain, even after they arrive in the destination country' (2002: vi). This definition corresponds most closely to what are known as 'people smugglers' in Australia.

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RESOLVING IMMIGRATION STATUS: A review of the international literature

coming to the UK than a perception that the UK is a tolerant democracy' (Robinson and Segrott, 2002: 43). The other important idea to emerge from this paper was the concept of benefits: asylum seekers had only general expectations of support and did not wish for it to be long term, and finding a job and independence were rated highly as priorities (Robinson and Segrott, 2002: 50). These two ideas are ones that influence any discussion of deterrence, because it is about the interrelationship between knowledge, capacity to act and expectations of actions taken that will influence any conclusions reached about the effectiveness and value and legitimacy of deterrence. In a study undertaken in Switzerland in 2000, Holzer et al. focussed on the deterrent value of legislation governing asylum seekers (Holzer et al., 2000). First, the report concluded that it was possible for individual states to restrict the flow of individuals claiming asylum in that country, although the caveat of this conclusion was that the geographical proximity and cultural similarity of the claimants to the receiving nation was an important factor; the closer they were, the less deterrence value there was in the policies (Holzer et al., 2000: 1184). Second, 'push' factors are far more important than 'pull' factors in determining the effect of deterrence policies. This was shown in examples comparing the case of individuals leaving Turkey because of an inflationary economy and individuals fleeing violence in the former Yugoslavia (Holzer et al., 2000: 1191-2). Holzer showed that increasingly stringent levels of deterrence did lower the number of asylum seekers moving primarily for economic reasons, such as those originating from Turkey. But the same deterrence strategies had little effect on people fleeing the civil wars in Yugoslavia. Holzer states that once a situation reaches a certain level of violence, people will be forced to seek asylum elsewhere, despite the legal barriers and other deterrent policies (Holzer et al., 2000: 1193). The significance of the Holzer report is to recognise a number of different elements about deterrence more broadly, not just in conjunction with asylum. One of the most important elements is that the report points to the complexity of the issues at hand, ranging from geography to cultural locations, and to the recognition of what creates an asylum seeker or a refugee. Further, the report mirrors a general finding from much of the refugee/non-citizen research that this entire report has found, demonstrating the methodological difficulties in identifying and controlling the variables in the politically charged and ethically sensitive context of immigration. Recent research undertaken in Australia on how refugees interpret immigration policies (Richardson, 2009) supports the contention of Robinson and Segrott (2002) that agents, or people smugglers, play an important role in determining the paths of asylum seekers. Further, Richardson's research of 27 refugees' reasons for coming to Australia revealed that few of them wanted to come to Australia specifically and none had detailed knowledge of Australian policy prior to their arrival. While the Australian Government believed that its policies transmitted certain messages to potential unauthorised arrivals, Richardson's empirical research, supplemented by a cultural studies frame, demonstrated that refugee 'audiences' are neither simple nor homogenous, and that blanket policies would fail to deter individuals since the information they receive is not clear, straightforward or guaranteed.

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8

Conclusion

This review reported on the literature relating to the range of mechanisms that have been developed to resolve the immigration status of non-citizens in host countries. These mechanisms include detention, supervised release, temporary visas, legal and practical assistance and case management. In each case the review has attempted to address the issues raised by these mechanisms including their efficiency and cost, the impact on refugees, asylum seekers and other non-citizens, the human rights implications of the mechanisms, and their effect on compliance levels. In the introduction we have pointed out the very considerable methodological challenges for undertaking empirical research in this area, primarily because data are difficult to collect and much of the research comes from non-academic and nontraditional sources. We have also noted the varying extent of the research depending on the mechanisms studied. In particular there is now a considerable body of knowledge about the effects of detention on individuals, but there is much less evidence about the effectiveness of the various alternatives to detention. There are no empirical works whose primary focus is the speed of status resolution, and even where conclusions about the speed of the process are offered, the evidence does not point strongly to one mechanism over another. Furthermore, although deterrence has been the policy objective for many of these mechanisms, there is virtually no empirical evidence on the deterrent effect of any particular intervention, other than that which suggests that it is difficult to send clear messages to potential unauthorised arrivals. Despite the limitations of the research evidence, there are lessons to be learned from the literature. 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. In addition, it is the most appropriate intervention to fulfil human rights obligations. Research on compliance, where available, supports the claim that this intervention also reaches high compliance levels, particularly before the removal decision. While limited, information about the financial costs of various mechanisms has been assessed, and this generally indicates that alternatives to detention, particularly community-based approaches, are a less expensive option than detention and shift the financial burden away from the state and on to non-profit organisations. Inevitably most of the research literature focuses on evaluations of specific programs or interventions, mainly small scale pilot programs. There is very little information that compares different interventions in any dimension other than compliance levels, and even these data are rather patchy, and mainly confined to the US context. However, the literature acknowledges that a comprehensive policy for dealing with non-citizen status will inevitably contain a range of interventions, including some that are more restrictive.

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RESOLVING IMMIGRATION STATUS: A review of the international literature

None of the literature addresses the most appropriate combination of different interventions and policies. The range of policies will also inevitably differ considerably between countries, because of huge variations in the immigration context in different countries. The most glaring example is the sheer numbers of refugees, asylum seekers and unauthorised non-citizens in the US and the UK, which are several orders of magnitude greater than those in Australia, and therefore the policy responses will inevitably vary. Despite these caveats it does appear that a status resolution policy based around some form of community-based case management represents an effective approach in terms of compliance, costs and securing human rights. This supports the decision of the Australian Government to offer such measures within a suite of broader options. More research is necessary, however, to determine if certain aspects of this approach (exogenous factors such as host country refugee recognition rate; endogenous factors such as the type of claimant) account for high levels of compliance. Much of this research could be more easily accomplished if immigration data were harmonised and shared across countries. Better use of administrative data Immigration departments in every country routinely collect a wide range of data about status resolution of non-citizens. These data often include demographic information, data about the process of status resolution including timescales, costs, compliance rates, service provision and outcomes. These data have the potential to provide rich and detailed descriptions of the status resolution process and its outcomes, and since these data are already collected as part of the operations of the government departments, they provide a much cheaper option for analysis than collecting primary data through research. With modern techniques of data linkage they could be used to examine health and employment outcomes, for example. The data are overwhelmingly used for policy and program purposes and are seldom made available to researchers. However, we would recommend that in future and with appropriate safeguards, data are made available to the research community. Given the significant gaps in the empirical literature and considering the current policy interests of DIAC, there are a number of research programs that would add considerably to the current state of knowledge about resolving the status of noncitizens. We conclude with a list of possible projects for which research designs could be developed. 1. The Impact of Legal Assistance · What effect does legal assistance have on compliance for those participating? · To what extent does legal assistance speed or slow immigration outcomes? · What are the costs of legal assistance, for the state and for participating non-government agencies? · How do the answers to all of these questions change depending on: o the type of legal assistance (early intervention, legal orientation, free legal representation, etc.) o the type of participant (protection claimant, overstayer, etc.) 61

RESOLVING IMMIGRATION STATUS: A review of the international literature

·

How can we design an effective study that compensates for selection bias?

2. Comparative Study on Visa and Immigration Regimes · Based on comparative empirical research, what is the effect on individuals of temporary visas, dispersal policies, provisions of assistance and employment opportunities? · What types of material assistance provide appropriate incentives for noncitizens to comply with immigration processes, both appearance at hearings and compliance in removal? 3. Removal and Return Policies · Under what conditions are non-citizens most likely to return to their country of origin voluntarily? · What types of arrangements can be made with the country of return to ensure safe, sustainable and successful reintegration? 4. Conditional Release Programs · What criteria have been utilised to determine flight risk? · Which categories and which groups of individuals may be effectively placed under various types of supervised release and/or bail programs? · What are the costs associated with such programs? · What are the compliance rates? 5. Case Management · What are the short- and long-term impacts of community-based interventions, on the individuals themselves, on compliance, on the speed of the outcome, on costs, and on other members of the community? · What is the optimal model for case-management approaches, both in terms of their management structure (e.g., the role of NGOs and statutory providers) and the provision of services? 6. Overall System · What is the optimal combination of detention, case management and other approaches to optimise the effectiveness of the process for addressing the issue of status resolution?

7. International Comparison · Building on the comparative analysis in the companion document and relying on potentially available administrative data, how can we design an effective field-based study to accurately measure and evaluate successful approaches taken by other countries that may inform the future development of policy in Australia?

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RESOLVING IMMIGRATION STATUS: A review of the international literature

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