Sunday 20 December 2015

Latin American implications for immigrant detention in Europe: comparing Celaj and Vélez Loor

Dr Andrea Romano, Research assistant, “Sapienza” University of Rome


The Celaj judgement and its controversial relationship with the earlier case law of the Court of Justice on the Returns directive has been persuasively discussed in this blog (see Majcher). This commentary focuses on a brief comparison between that judgment and the Vélez Loor case decided by the Inter-American Court of Human Rights in 2010 (hereinafter IACtHR).

The judgment of the Court of Justice of the European Union in Celaj originated from one of the several preliminary rulings raised by Italian judicial authorities on the Returns Directive. Now, from an Italian immigration law perspective it has to be noted that the Court of Justice – when requested by means of preliminary rulings – has so far considered deprivations of personal liberty of particular gravity as incompatible with the Returns Directive. Whereas this jurisprudence was drawn upon the principle of effectiveness – i.e. not directly upon a human rights rationale – as a matter of fact it contributed to strengthen the fundamental right of immigrants in an irregular situation (El Dridi, Sagor). However, the Court failed to apply a similar scrutiny in the Celaj case, simply because that case concerned a custodial sentence for breach of an entry ban, rather than a sentence for irregular stay on the territory, as in the earlier cases. And it should be borne in mind that the criminal sanction under scrutiny in the El Dridi judgment (an imprisonment between one and four years) was – prior to the 2011 reform, introduced to comply with El Dridi – exactly the same as that provided for an entry ban violation, which has been now declared consistent with the Returns Directive in the Celaj judgment.

Having said that, the Celaj judgement represents an opportunity to explore a different reasoning and different rationales, allowing to problematize migrants’ detention and the deprivation of their personal liberty. It is well known that the ECtHR has so far maintained a quite deferential position as far as national detention measures for irregular migrants are concerned. In particular, the Court has stated in several judgments that it will not apply the non-arbitrary test (which includes a proportional and necessary scrutiny) to situation falling within the scope of Article 5(1)(f) of the Convention, which concerns the detention of irregular migrants (Saadi v. the United Kingdom). Thus, this case-law does not have a significant impact on Celaj ruling, also because it concerns administrative detention and not criminal imprisonment (see Cornelisse).

If one looks outside the European context, the Vélez Loor case decided from the Inter-American Court of Human Rights suggests instead a challenging set of arguments in favour of a human rights approach in the framework of immigrants’ imprisonment for non-compliance with immigration law.

The multifaceted scrutiny of the deprivation of liberty in the Vélez Loor case

This case concerned an Ecuadorian citizen arrested by the police from Panama while being without a residence permit in that country, and deprived of his personal liberty for several months. In particular, in accordance with the law applicable at that time, he was sentenced to a two-year imprisonment on the ground of his breach of a prior deportation order and connected entry ban from the State of Panama (cf art. 67 and art. 37 of the Law Decree no. 16 of 1960; the Law Decree no. 3 of 2008 has eliminated the imprisonment). Therefore, as in the Celaj judgment, the purpose was to punish the “recidivism” of the migrant.

The Vélez Loor judgement seems to be highly relevant for the European context of irregular immigration, both for its outcome and reasoning. To begin with, the Inter-American Court’s consideration on the vulnerability of immigrants in an irregular situation is striking. As other scholars have already remarked, whereas this concept is familiar to the European Court of Human Rights, the reasoning of the Inter-American Court entails a wider scope (see more in detail Dembour, Beduschi): unlike the ECtHR, which dealt with vulnerability in specific cases, the argument of the IACtHR is not restricted to certain foreigners but involves the whole category of irregular migrants.

Quoting a report of the Special Rapporteur of the Economic and Social Council, the Court notes that migrants in an irregular situation are “the most vulnerable to potential or actual violation of their human rights and because of their situation they suffer a greater lack of protection of their rights” (par. 98). In particular, the Court reflected on the cultural prejudices about irregular migrants that lead to establish a nexus between irregularity and criminality, and the likely impunity in case of their human rights violations. Those negative implications of irregularity highlighted by the Inter-American Court might be seriously taken into account by European and national legislators for (at least) two grounds: on the one hand, the Court’s remarks on the equation between irregular migrants and criminals and its “stigma” effect suggests the importance of reducing differentiated criminal treatment; on the other hand, it might represent a strong argument with a view to reduce irregularity by means of regularization initiatives conducted on an individual basis by Member States or even in the EU’s framework.

Against this background, the Court considers the several human right violations that Mr Vélez Loor suffered (including lack of due process, torture, arbitrary detention). Limiting the attention to the imprisonment as a consequence of a prior deportation order and entry ban, the Court articulates a pervasive scrutiny that leads to the declaration of incompatibility with Article 7(3) of the Convention, (establishing that “no one shall be subject to arbitrary arrest or imprisonment”). First, the purpose of the deprivation of personal liberty and its suitability is considered. The Court makes clear that “the purpose of imposing a punitive measure on an immigrant who re-enters a country in an irregular manner subsequent to receiving a deportation order cannot be considered legitimate purpose according to the Convention” (par. 169). In practice, according to the Court, a personal liberty deprivation, if adopted in order to control migration flows, cannot be declared incompatible with the Convention as such. It is inconsistent only when the punitive purpose prevails over the migration control rationale: this occurs when “criminalizing an irregular entry into a country goes beyond the legitimate interest of States to control and regulate illegal immigration and leads to unnecessary detention” (par. 169).

Furthermore, the Court applies a test of necessity and of proportionality. This is particularly relevant for the European context, as the ECtHR has been so far quite reluctant to make use of such kind of scrutiny, as regards the cases in which immigration detention is concerned (see, for an in-depth analysis: Dembour and Cornelisse). The IACtHR founds the detention of the immigrant unnecessary and disproportionate and affirms that “it is essential that States devise a range of alternative measures” (par. 171). Again, this does not imply a general ban of immigrant detentions but hinders “automatic” detentions and lays down a circumstantiated and individualized evaluation of each case, using detention only as extrema ratio.

Implications for Celaj

In line with the jurisprudence of the Court of Justice the imprisonment of an irregular migrant for non-compliance with immigration laws undermines the principle of effectiveness, representing an obstacle to returns migrants. Whereas this has led several Member States to change their legislation – since their standard of protection of migrants’ rights was far below that ensured by the Returns Directive – many scholars have criticized this functional (or “securitarian”) approach of the Court, affirming that it fails to address fundamental rights and confirms the restrictive approach of the Directive. The IACtHR, conversely, offers a quite opposite reading to pre-empt immigration detention, which is bluntly grounded on a human-rights rationale, by taking a far-reaching account of the purpose and the limits of detention.

Now, according to the Italian legislation, the imprisonment for immigrants convicted for an entry ban violation has no direct link with a migration control objective, since it is not imposed with a view to expulsion. By contrast, the imprisonment of the migrant in that case needs to be framed within the more general purposes of criminal sanctions (such as deterrence or rehabilitation of sentenced people). Therefore, the statement of the IACtHR, affirming that a punitive purpose in the application of an immigrant detention represents a violation of the human right to personal liberty, calls for a reflection on the scope and meaning of such a liberty deprivation in the Italian context and suggests to eliminate prison sentences for non-compliance with immigration law.

Furthermore, it should be recalled that in Italy an entry ban violation might imply a rather long-term imprisonment, ranging from one up to four years. Also, the necessity and proportionality scrutiny carried out by the Inter-American Court is particularly instructive in order to consider the suitability of such a long deprivation of the personal liberty.


In the light of the above, the judgement of the Inter-American Court deserves careful attention with a view of exploring new scenarios against the widespread use of criminal sanctions implying migrants’ imprisonment in Europe.

Naturally, it would be naïve and misleading to advocate a bare transposition of this judgment into the Luxembourg jurisprudence, considering the broad differences between the Court of Justice and the IACtHR. However, one cannot underestimate the scope and relevance of the Inter-American Court’s scrutiny for ongoing difficulties raised by the “crimmigration” phenomenon in Europe. It is sufficient, in this sense, to think about the general assumption that tends to equalizes migrants and criminals, the negative consequences on the functioning of the justice (as noted by Majcher) – which are particularly serious in Italy – and the risk of “chain” detentions – i.e. the possibility of migrants suffering administrative detentions after a prison sentence (and vice versa).

The IACtHR articulates a set of far-reaching remarks, criticizing the punitive purpose of prison sentences, applying a necessity and proportionality test to immigrant detention and emphasising the need for States to seek for alternative measures. Those remarks could be interpreted as a meaningful toolkit in the perspective of enhancing the standard of protection of immigrants’ human rights in an irregular situation at national and European level.

Barnard & Peers: chapter 26
Photo: The Inter-American Court of Human Rights in Costa Rica

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