Izabella Majcher, Researcher at Global Detention Project / Global Migration Centre and PhD candidate in International Law at the Graduate Institute of International and Development Studies is Geneva.
Can
immigration detainees be held in prisons? Can they be confined alongside
ordinary prisoners? Last Thursday 17 July 2014, in its decisions on the joint
cases of Bero & Bouzalmate (C-473/13 & C-514/13) and the
case of Pham (C-474/13), the Court of Justice of the European
Union (CJEU)
rendered its opinion on this practice. These judgments are the ninth and tenth times
that the Court has interpreted the provisions of the EU Returns Directive, the previous one being the Mahdi case, which was decided in early June 2014.
Most of the
Luxembourg case law on the Returns Directive has dealt with pre-removal detention.
The Court has ruled on the length of detention (Kadzoev case), the relation between (administrative) pre-removal detention and
criminal incarceration (El Dridi and Achughbabian cases), detention during asylum procedures (Arslan case), and procedural standards on reviewing and extending detention (G&R and Mahdi cases). In the Bero &
Bouzalmate and Pham cases, the
Court interpreted the Directive’s provisions on conditions of detention for the
first time.
Questions referred to the CJEU for a
preliminary ruling
The
questions referred to the CJEU addressed the places used for detention in
Germany. It is regulated under article 16(1) of the Returns Directive, which
provides that:
“Detention shall take place as a rule in specialized detention
facilities. Where a Member State cannot provide accommodation in a specialized
detention facility and is obliged to resort to prison accommodation, the
third-country nationals in detention shall be kept separated from ordinary
prisoners.”
All three
requests for a preliminary ruling concerned pre-removal detention carried out
in prison rather than a specialized immigration detention facility. Ms. Bero
was detained alongside ordinary prisoners in Frankfurt prison (in Hesse federated
state) for almost a month, while Mr. Bouzalmate was confined in a separate area
devoted to immigration detention in Munich prison (in Bavaria federated state)
for three months.
In Germany,
immigration detention falls under the competency of federated states (Länder). The reason Ms. Bero and Mr.
Bouzalmate were confined in jails was that Hesse and Bavaria federated states (and
several others) do not dispose of special immigration detention centers. Such
practice is based on the German Residence Act. Its section 62a(1), which transposed
article 16(1) of the Directive, sets out that:
“As a general principle, custody awaiting deportation shall be
enforced in specialized detention facilities. If a Land has no specialized
detention facilities, custody awaiting deportation may be enforced in other
custodial institutions in that Land; in such cases the persons in
detention awaiting deportation shall be accommodated separately from prisoners
serving criminal sentences.”
In the joint
cases of Bero & Bouzalmate, the referring courts asked
the CJEU to determine whether under article 16(1) of the Returns Directive a
member state is required, as a rule, to detain non-citizens pending removal in
a specialized detention facility if such facilities exist in only part of the
federated states of that member state (Bero
& Bouzalmate, § 13 and 21).
Likewise,
the Pham case concerned a pre-removal
detention of over three-months being carried out in prison. However, Ms. Pham
signed a written declaration in which she consented to being confined in a
prison together with ordinary prisoners because she allegedly wanted contact
with her compatriots who were detained there. The German Federal Court of
Justice referred to the Luxembourg judges a question whether it is consistent
with article 16(1) of the Returns Directive to confine a migration detainee together
with ordinary prisoners if they consent to such accommodation (Pham, §13).
The CJEU’s decisions
In both
judgments the Court followed the Advocate General Bot's Opinion delivered at the end of April 2014.
Accordingly, a member state cannot rely on the fact that there are no
specialized detention facilities in a part of its territory to justify keeping
non-citizens in prison pending their removal (Bero & Bouzalmate).
The same rule applies even if the migration detainee has consented to being
confined in penitentiary (Pham).
In the
joint cases of Bero & Bouzalmate the Court held that article
16(1) of the Return Directive requires a member state, as a rule, to detain
migrants pending removal in a specialized detention facility even if the member
state has a federal structure and the federated state competent to decide upon
and carry out such detention under domestic law does not have such a detention
facility (Bero & Bouzalmate, § 33). This conclusion was
based principally on two arguments.
At the
outset, the Court observed that the first sentence of article 16(1) sets out
the principle that pre-removal detention is to take place in specialized
detention facilities. The use of prisons allowed under the second sentence of article
16(1) represents a derogation from that principle, which, as such, shall be
interpreted strictly (Bero & Bouzalmate, §25).
The
interpretation of that second sentence was focused on in the Opinion of the Advocate
General. The Advocate General observed that there were significant differences
in the wording of article 16(1) between the different language versions. Pursuant
to the English version, migrants may be held in prisons if member states cannot provide accommodation in a specialized
centre. In contrast, the German version allows member states to use prisons if
there are no specialized facilities. According
to the Advocate General, the German version of the second sentence of article
16(1) was incorrect. It would allow states to rely on the lack of specialized
facilities to derogate from the principle laid down in the first sentence and
thus deprive it of all effectiveness (AG’s Opinion, § 63-80).
Secondly,
the Court addressed the federal structure of the country. It held that the
obligation laid down in the first sentence of article 16(1) requiring detention
to take place as a rule in specialized detention facilities is imposed upon
member states as such, regardless of the states’ internal administrative or
constitutional structures. Thus, the fact that in certain federated states of
the member state, the competent authorities have specialized facilities at
their disposal cannot amount to sufficient transposition of the Returns
Directive if the competent authorities of another federated state of that
member state lack such facilities (Bero & Bouzalmate, §30).
The Court’s
conclusions in Bero & Bouzalmate were further developed in the
case of Pham. The Court ruled that the
second sentence of article 16(1) of the Directive does not allow member states
to detain migrants pending removal in prison together with ordinary prisoners
even if they consent thereto (Pham, §
24).
More precisely,
in the case where the derogation in the second sentence of article 16(1)
applies, i.e. where a member state cannot provide accommodation in specialized
detention facilities and resorts to prison, immigration detainees shall be kept
separated from ordinary prisoners. The Luxembourg judges observed that under
the Directive, the obligation for migration detainees to be kept separated from
ordinary prisoners is not coupled with any exception. Moreover, they stressed
that the separation requirement is more than just a specific procedural rule
for carrying out detention in prisons and constitutes a substantive condition
for that detention, without compliance of which such detention would, in
principle, not be consistent with the Directive (Pham, § 17, 19 and 21).
Comments
Ever since
the adoption of the Returns Directive in 2008, the terms of article 16(1) have warranted
an interpretation. The Court’s judgments in Bero
& Bouzalmate and Pham are thus welcome. What impact will
they have on the places where migrants are detained across Europe? Several
points need to be fleshed out.
First of
all, the judgments will obviously trigger changes to the German practice of
using prisons for immigration detention purposes. Currently, as the recent
report by the Pro Asyl describes, in ten out of sixteen federated German
states (Baden-Württemberg, Bavaria, Hamburg, Hesse, Lower Saxony, Mecklenburg-Western
Pomerania, North Rhine-Westphalia, Saxony, Saxony-Anhalt, and Thuringia) migration
detainees are held in prisons. However, in line with the judgment in Bero & Bouzalmate, a federal state like Germany is not obliged to set up
specialized centers in each federated state. However, it shall ensure via, amongst others, cooperation agreements
between federated states that the competent authorities of a federated state
that does not dispose of such facilities can place migrants in specialized
facilities located in other federated states (Bero & Bouzalmate, §31).
At present the ten federated states that do not have specialized centers use
some sixteen prisons with the total immigration detention capacity exceeding
800. To compare, besides airport detention facilities, there are only four
specialized detention facilities in Germany—Berlin-Köpenick, Eisenhüttenstadt,
Ingelheim, and Rendsburg—with a combined capacity of around 450.
The Court’s
reasoning in Bero & Bouzalmate that the absence of specialized
detention facilities in a federated state cannot in itself justify confining
migrants in prisons in that federated state is of relevance to other federal states,
like Austria and Switzerland (which is bound by the Returns Directive as a Schengen associate). Arguably, it can have a broader application and
impact practice based not only on the administrative structure of a state but
also the geographical location of detention facilities. This would be in line
with the Advocate General’s view that if a country has a specialized detention
facility in its territory, with sufficient detention capacity, it shall order the
detention of the person concerned in that facility, the geographical situation
of that facility being of little importance (AG’s Opinion, §144). Thus, it
appears that authorities would not be able to rely on the derogation clause in
the second sentence of article 16(1) and hold migrants in prison, if there is
available space in a specialized facility, even if it is located far away.
When would a
state thus be able to rely on the second sentence of article 16(1) of the Returns
Directive? When can authorities be justified in claiming that they “cannot”
detain migrants in a specialized detention facility and instead hold them in a prison?
In his Opinion, the Advocate General has explained when this derogation clause
might be used. He reads it in conjunction with article 18 of the Directive.
Under article 18(1) the Directive explicitly allows states to derogate from
article 16(1) in “emergency situations,” i.e. the situations in which “an
exceptionally large number of third-country nationals to be returned places an
unforeseen heavy burden on the capacity of the detention facilities” of a member
state. According to the Advocate General, it is possible to infer from the wording
of “emergency situations” related to the influx of migrants under article 18(1)
the nature of other circumstances that states may invoke to rely on the
derogation clause in article 16(1). Thus, a member state may order detention in
prison “only if there are exceptional and legitimate grounds, such as those
alleging necessity, showing uncontestably that the weighing up of interests
requires that solution” (AG’s Opinion, § 124-136).
The
judgments in Bero & Bouzalmate and Pham, read together with the Advocate General’s detailed views,
therefore considerably restrict the use of prisons for confining migrants.
However, as the research by the Global Detention Project reveals, police stations rather
than prisons are most frequently used in Europe as a substitute for specialized
detention facilities. This practice has been regularly criticized by the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (CPT). The CPT maintains that since the conditions in police
stations are usually inadequate for prolonged periods of detention, such
premises should be used only for very short periods of time. Yet, in reality
states tend to apply their usual maximum time-limits on detention to migration
detainees held in police stations. Is this practice compatible with article
16(1) of the Returns Directive, which is silent with respect to the use of
police stations? Can the Court’s decisions in Bero & Bouzalmate and
Pham be applied by analogy? Arguably, this widespread practice of
the Directive’s member states needs to be assessed by the Luxembourg judges.
Finally,
the Court’s stance in Pham on the
separation obligation clearly puts the Directive’s provisions in line with
international human rights standards. For the Court, it represents a
“substantive condition” (rather than merely a procedural one) for detention of
migrants carried out in prison, without compliance of which such detention,
would, in principle, not be consistent with the Directive. This entails that
when a state cannot ensure separated accommodation in prison, it would not be
able to invoke the derogation clause under article 16(1). However, what does
the separation obligation require? Does it suffice that migrants have cells for
their own (but may have contact with other detainees during meal or recreation
time)? Or, shall authorities set up separate units for immigration detainees to
comply with that obligation? The Court does not explain it. Without clarity on
the Court’s understanding of the separation principle it is difficult to assess
the practice across the EU. In fact, the European Commission’s recent communication on an EU return policy points out that the domestic
legislation of nine countries does not fully require a “strict separation” of
migration detainees from ordinary prisoners. Arguably, the Advocate General’s
views should be followed according to which the separation requirement entails
“the strict separation of migrants from ordinary prisoners by establishing a
separate unit completely isolated from the rest of the prison, offering no
possibility of communication with persons convicted or remanded in custody”
(AG’s Opinion, § 100).
Photo Credit: © www.migreurop.org/Sara Prestianni
Barnard
& Peers: chapter 26
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