Dr Andrea
Romano, Research assistant, “Sapienza” University of Rome
Introduction
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.
Conclusion
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
Photo
credit: www.un.org
