Thursday 1 May 2014

When can irregular migrants be detained in prisons?

Steve Peers

Yesterday’s Opinion, for the Court of Justice of the European Union (CJEU) by Advocate-General Bot, addresses an important legal question: when can irregular migrants be detained in ordinary prisons (as distinct from specialised detention centres for migrants) pending their expulsion?

This issue is addressed by the EU’s Returns Directive, which (among other things) sets out rules on the grounds for detention and detention conditions of irregular migrants pending expulsion. Most of the CJEU case law on this Directive to date has concerned the grounds for detention; yesterday’s Opinion (covering three different cases) was the first time that the Court has been asked to rule on aspects of detention conditions.

Conditions of detention in the Returns Directive

The main topic of yesterday’s opinion was Article 16(1) of the Returns Directive, which states that ‘Detention shall take place as a rule in specialised detention facilities. Where a Member State cannot provide accommodation in a specialised detention facility and is obliged to resort to prison accommodation, the third-country nationals in detention shall be kept separated from ordinary prisoners’.

The remainder of Article 16 sets out rules concerning communication with the outside world, vulnerable persons, treatment of illness, the role of NGOs and the supply of information to detainees. Article 17 contains special rules for detention of minors and families.

However, Article 18 of the Returns Directive allows Member States to derogate from Article 16(1), as well as two other rules on detention (concerning the timing of judicial review and the obligation to provide separate accommodation for detained families pending removal). This derogation can apply where there is ‘an exceptionally large number of third-country nationals to be returned’ which ‘places an unforeseen heavy burden on the capacity of the detention facilities of a Member State or its administrative or judicial staff’. However, Germany (the Member State concerned by yesterday’s opinion) apparently did not claim that this derogation was applicable.

The Opinion

Two of the three cases (Bero and Bouzalmate) raised the same question: can a federal State argue that it is justified to keep immigration detainees in prisons on the basis that some of its constituent states do not have immigration detention facilities at all? The third case (Pham) raised the question of whether a detainee could consent to being held in a prison instead of a detention facility.

The answer to the first question turned in part on differences in the wording of the Directive between the various versions in the official languages of the EU. In the English version, Member States can detain irregular migrants in prisons if they ‘cannot’ detain them in specialised facilities. According to the Opinion, all other language versions suggest the same meaning – apart from the German version. Instead, the German version allows Member States to detain irregular migrants in prisons if they ‘do not have’ specialised facilities (my translation of the French language version of the opinion).

In the Advocate-General’s view, the version in the majority of language versions had to be preferred. Since specialised detention facilities were the rule, and detention in prisons was the exception, it would not be acceptable to allow (parts of) Member States to avoid applying the normal rule simply because they did not have immigration detention facilities. Implicitly, they simply have to build them.

He rejects a number of arguments to the contrary suggested by Germany and the Netherlands. In his view, Article 18 (which, as we have seen, allows for a derogation from Article 16(1) where there is an exceptionally large number of people to be returned) is the only possibility for an exception from Article 16(1). Surely this is correct, since if the drafters of the Directive had wanted to provide for further possible exceptions, they would have done so expressly, given the importance of the general rule that migrants should be detained separately from ordinary prisoners.

Also, he is not convinced by the argument that the federal structure of Germany (and, by analogy, other federal states such as Austria) justifies such a result. While the national identity of Member States, protected by Article 4(2) of the TEU, protects their federal nature, it does not exempt them from complying with their EU law obligations, but only leaves it to them to make arrangements within the framework of their national constitutional order to ensure that their EU obligations are complied with. In any event, German law in fact allows the different Lander to cooperate as regards immigration detention spaces. This approach has to be correct: Article 4(2) should be seen as a safeguard against the EU trying to alter the constitutional foundations of each Member State, not as a carte blanche allowing Member States to justify non-compliance with EU law.

He also rejects the astounding argument that prison accommodation is a ‘more favourable’ rule for immigration detainees than specialised facilities (the Returns Directive allows Member States to apply such more favourable rules as regards any of its provisions). Germany and the Netherlands argued that prison detention benefited irregular migrants because it meant that they were closer to friends and family, and could enjoy some of the extra facilities available in prisons. But the Advocate-General, quite rightly, cannot accept that detaining migrants in a prison, as if they were convicted criminals (or criminal suspects subjected to pre-trial detention) could be considered ‘more favourable’ for them.

Next, he rejects arguments based on cost and overcrowding. After all, as he points out, holding immigration detainees in prisons will also lead to overcrowding, and refurbishing prisons so as to provide for strict separation of ordinary prisoners and immigration detainees entails costs too.

Finally, in the other case (Pham), the Advocate-General rejects the possibility that detainees could consent to waive their rights to be held separately from ordinary prisoners. From a literal perspective, the Returns Directive does not provide for a waiver and given the importance of the rule of detaining migrants separately from ordinary prisoners, such an exception cannot be inferred. The Advocate-General also rightly lays stress on the lack of power of detainees as compared to the immigration and prison authorities. Simply put (borrowing from Noam Chomsky), it is easy in such cases to manufacture consent.

It might also be added that where EU legislators want to provide for the possibility of waiving rights, they usually provide for this expressly. A well-known example is the possibility of employees to agree to work more than 48 hours a week, provided for in the EU’s Working Time Directive. Another example, thematically closer to the issue in the Pham case, is the possibility of criminal suspects to waive some of the rights set out in recent EU legislation. Strikingly, in both these cases, there are detailed safeguards in the legislation aiming to ensure that the rights can only be waived freely and with knowledge of the consequences. If the EU legislature had wanted to allow any of the rights in the Returns Directive to be waived, they would surely have provided for such safeguards here too.

Again, the Advocate-General rejects the argument that the possibility of waiving his rights was a ‘more favourable rule’ for Mr. Pham. Member States had argued that he could spend more time with people from his own age and nationality – even though all the persons concerned were convicted criminals or criminal suspects.

Consequences of the judgment

Assuming that the CJEU follows this opinion in its judgment, what will be the consequences? First of all, what are the consequences for national administrations? It should be noted that according to the Commission’s recent report on the implementation of the Directive, Article 16(1) is being breached in nine Member States.

Member States might be tempted to imagine that they can get around the Court’s judgment by criminalising more breaches of immigration law, and/or providing for longer sentences for immigration offences and using such laws more frequently in practice. So then they could say that the migrants are in fact ordinary prisoners and could not benefit from this judgment. However, the CJEU has already ruled several times (see for example the El Dridi judgment) that the imposition of custodial sentences for immigration offences is in principle problematic, since it delays and complicates the expulsion of the person concerned – which is the main point of the Directive.

Alternatively, Member States might be attracted to use the exception from the rules provided for in Article 18. To do so they will have to show that there are ‘exceptionally large’ numbers posing an ‘unforeseeable’ burden. The Opinion suggests that this exception might be applicable in the Member States dealing with migrants crossing the Mediterranean. But the numbers entering the EU via this route have sometimes gone down as well as up, and it may be questioned whether the numbers concerned can actually be regarded as ‘unforeseeable’.

Another way to reduce the numbers being detained is to stop the migrants reaching the EU Member States’ territory in the first place – although this is easier said than done.

The simplest way to reduce the numbers of irregular migrants being detained, and to avoid the attendant costs of building detention centres, is of course not to detain so many irregular migrants in the first place.

Secondly, as for the consequences for migrants, the CJEU has ruled in the G and R judgment that there is no obligation to release migrants from detention, just because there has been a breach of their right to be heard, unless it can be shown that such a breach affected their defence. But surely these cases are distinguishable, because the breach of the legislation concerns whether migrants should be detained in prisons in the first place. So unless: (a) immigration detainees can indeed be separated from ordinary prisoners, assuming that the Member State can show that it ‘cannot’ detain them in separate facilities; or (b) the Member State can show that the Article 18 derogation can be validly invoked, such detainees have to be released from prisons, and not detained there in the first place.

Finally, as regards the consequence for asylum-seekers, the second-phase reception conditions directive includes an essentially identical rule (Article 10(1) of that Directive) as regards their detention in prisons. In the absence of any reason to interpret the rules in that Directive differently, it must follow that the judgment in these cases will be applicable also to asylum-seekers’ detention, following the deadline to apply that Directive in July 2015.


The suggestion that detaining migrants in prisons constitutes ‘more favourable conditions’ for them as compared to specialised detention centres would be comic, if it were not for the seriousness of the consequences for the persons concerned – as evidenced by Mr. Bouzalmate’s suicide attempt.

Taken as a whole, the Advocate-General’s opinion neatly brings together excellent arguments about the literal interpretation of the Directive with an appreciation of what a humane interpretation of the Directive would suggest. Although Advocate-General Bot has a reputation for taking a strict view in cases involving convicted criminals, his Opinion in this case shows that he has a very clear understanding of the importance of the difference between convicted criminals and migrants who have committed no crime (leaving aside immigration offences). His analysis certainly ought to be followed by the CJEU.

 Barnard & Peers: chapter 26

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