Izabella Majcher, Associate Researcher at Global Detention Project and PhD candidate in International Law at the Graduate Institute of International and Development Studies is Geneva.
In November, the European Migration Network (EMN) released its Focussed Study titled “The use of detention and alternatives to detention in the context of immigration policies.” It constitutes a synthesis report based on national reports from 26 countries, prepared by the EMN National Contact Points (NCPs). The countries covered by the report included 25 European Union (EU) member states (Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Slovak Republic, Slovenia, Spain, Sweden, and the United Kingdom) and one Schengen Associate country (Norway).
The aim of the study was to “identify similarities, differences and best practices with regard to the use of detention and alternatives to detention in the context of (Member) States’ immigration policies.” There are two main forms of immigration detention under EU law: pre-removal detention, which is regulated by the Returns Directive (2008/115/EC), and asylum detention, governed mainly by the Reception Conditions Directive (2003/9/EC) and its recently adopted recast (2013/33/EU). This blog post will briefly discuss the study by looking at its objectives (p. 8), namely to:
· “Provide information on the scale of detention and alternatives to detention in each participating Member State and Norway by collecting statistics available on the number of third-country nationals (by category) that are subject to these measures;
· Identify the categories of third-country nationals that can be subject to detention and/or provided an alternative to detention;
· Compare and contrast the grounds for placing third-country nationals in detention and / or providing alternatives to detention outlined in national legal frameworks, as well as the assessment procedures and criteria used to reach decisions on detention in individual cases;
· Identify and describe the different types of detention facilities and alternatives to detention available and used in (Member) States;
· Collect any evidence of the way detention and alternatives to detention contribute to the effectiveness of return policies and international protection procedures.”
Scale of immigration detention
The statistical information constitutes one of the key strengths of the report. The figures on the number of migrants in detention are particularly relevant because the EU statistical office (Eurostat) does not provide them, to the contrary to, for instance, the number of non-citizens apprehended or deported.
For all but three countries (Cyprus, Greece, and Portugal) the report gives a total number of immigration detainees in 2013, which was 92,575. This figure is telling. However, to fully grasp the dimension of immigration detention in Europe, the figures for all the state parties to the relevant EU instruments over a few years are needed.
In 2013, the country which detained the highest number of non-citizens was France (including French overseas territories) (38,266), followed by Spain (9,020), Hungary (6,496), Bulgaria (6,303), and Belgium (6,285). On the other hand, the lowest number of immigration detainees was reported in Estonia (94), Slovakia (204), Latvia (221), and Lithuania (243). In terms of variations of the number of detained migrants, between 2009-2013 the highest increase was observed in Bulgaria (by more than 600 percent) and Hungary (by 226 percent). On the other hand, the greatest decrease was recorded in Slovakia (by 65 percent) and the Netherlands (by 53 percent).
Regrettably, few of the covered countries provided disaggregated statistics on the various categories of non-citizens among the total numbers of immigration detainees. Only nine countries provided data on the number of asylum seekers in detention and five countries on the number of pre-removal detainees. The recast of the Reception Conditions Directive contains a list of circumstances justifying detention of asylum seekers. Human rights advocates feared that this may trigger a more widespread use of detention during asylum procedures. The deadline for transposition of the recast is set for July 2015 and to date only a handful of countries have already transposed it. However in order to ascertain whether these concerns have materialized, the data on the number of asylum seekers in detention should be systematically collected already prior to the transposition of the recast.
Grounds for immigration detention
The study provides a useful overview of the most common grounds on which non-citizens can be detained under the domestic legislation of the examined countries. With respect to migrants in return proceedings, the report highlights 11 grounds laid down in legislation of the states bound by the Returns Directive (i.e. all countries covered by the study, except from the UK and Ireland). They include: the risk of absconding (22 countries), avoidance and hampering the removal process (20 countries), in order to effect the removal (14 countries), non-compliance with the alternatives to detention (12 countries), threat to national security and public order (12 countries), non-compliance with the voluntary return period (11 countries), the need to establish identity (11 countries), and reasonable grounds to believe that the person will commit a criminal offence (6 countries).
Amongst these grounds, only the first two are explicitly set out in the Returns Directive. The third one (to effect the removal) is also mentioned in the Directive, however as a general rationale for placing migrants in pre-removal detention. The fact that there are eight other grounds in the domestic legislation of the member states bound by the Directive, what did not entail any infringement proceedings by the European Commission, shows that, to the contrary to the stance by the Directive’s proponents, the Directive does not provide for an exhaustive list of grounds. Undoubtedly, an exhaustive enumeration of the circumstances justifying deprivation of liberty would prevent states from systematically ordering detention.
The report defines immigration detention as a non-punitive administrative measure (p. 8). Yet, two out of the above listed grounds appear to go beyond administrative migration-enforcement rationale. Arguably detention on account of threat to national security and public order and risk that the non-citizen will commit a criminal offence aims at deterrence or incapacitation. It is submitted here that if a migrant would indeed threaten public order, he should be subject to criminal rather than migration laws. Conflating the functions of these distinct branches of law creates confusion and feeds negative perception about migrants amongst the public.
In terms of detention of persons seeking international protection, the most common grounds include the need to establish the person’s identity (17 countries), the risk of absconding (16 countries), the threat to national security and public order (15 countries), suspicion of abuse of the asylum procedure (11 countries), the non-compliance with the alternatives to detention (9 countries), destroyed or forget identity documents (8 countries), and reason to believe that the persons will commit a criminal offence (7 countries).
Upon the transposition of the recast Reception Conditions Directive, several states would need to adapt their domestic provisions containing circumstances justifying detention to comply with the Directive, since it sets out an exhaustive list of grounds. These grounds include: determination of the identity and nationality, determination of the elements of the asylum application that could not be obtained in the absence of detention (particularly if there is a risk of absconding), when border, return, or Dublin procedures are ongoing, and for the protection of national security and public order.
Review of detention
The report’s findings under this heading are meaningful and show how Member States participating in the Returns Directive took advantage of quite low requirements of the Directive in terms of judicial control of detention. In fact, the lack of mandatory and ex officio judicial supervision of detention appears to be one of the weaknesses of the Directive. Under the Directive, detention shall be ordered by administrative or judicial authorities. As the report shows, in most of the countries authorities which decide to arrest a migrant also carry out an initial assessment of whether grounds for detention apply. Usually these are non-judicial bodies, such as police (11 countries), migration and asylum authorities (10 countries), Interior Ministries (5 countries), and border guards (5 countries). Only in nine countries is the decision to detain ultimately taken by a court. Thus, the vast majority of the countries relied on the possibility under the Directive to task administrative bodies to order detention. In such cases, the Directive obligates states to either provide for a speedy judicial review of detention or grant the detainee the right to apply for such a review. Obviously, the latter option is less protective and often migrants would need legal assistance to be able to exercise that right. Yet, this option has been privileged by states. The data put together in this section of the report demonstrate that in 16 of the examined states, there is no automatic periodic judicial review of detention. Administrative courts are only involved following application by the detainee.
Places of detention
Both the Returns Directive and the recast Reception Conditions Directive prioritize the use of specialized detention facilities for confining immigration detainees. In July 2014, the Court of Justice of the European Union interpreted the relevant provision laid down in the Returns Directive and ruled that the absence of specialized facilities in one part of the Member State’s territory does not justify using prisons, if specialized facilities are available in other part of its territory.
This section of the report is confusing. The study uses the term “detention facility” when referring to specialized facilities. It provides that the use of “detention facilities” is a “consolidated practices across all (Member) States, with the exception of Ireland where third-country national are detained in prisons” (p. 28). This statement implicitly says that other countries use specialized detention facilities, but that is far from the reality. In fact, Germany, for instance, uses prisons, Greece police stations, while Austria “police detention centres,” which are a peculiar kind of facility, confining, besides immigrations detainees, also administrative detainees and criminal suspects. The report in fact classifies immigration detention sections of German prisons and Austrian “police detention centres” as specialized facilities. It also says that migrants can be detained in police and border stations in Greece for a short time. This statement seems to ignore a systematic practice by Greek authorities, confirmed by several monitoring bodies, of detaining migrants in such premises for the maximum length of detention.
It needs to be highlighted that the report’s findings are based on the national reports written by EMN National Contact Points (NCPs). Out of 26 NCPs which drafted the national reports, 18 are part of or work under the authority of the Ministry of Interior, three are national offices of the International Organization for Migration (IOM), while only three include academic or research institutions. The involvement of the Ministries of Interior in the drafting of at least 70 percent of the reports calls for reading with caution the positive findings flowing from these reports. In particular, in order to have a more nuanced picture of the use of immigration detention in Europe, one should gather the information from academia and relevant NGOs.
Alternatives to detention
The Returns Directive and the recast Reception Conditions Directive require states to give priority to “less coercive measures.” The study enumerates the most common non-custodial alternatives to detention, including reporting obligations (23 countries), residence restrictions (18 countries), surrender of documents (15 countries), and the release on bail (13 countries). It does not however clarify whether these alternatives to detention are solely provided for in domestic legislation of examined countries, or are also used in practice. In fact, with respect to the use of alternatives to detention the difference between theory and practice tends to be considerable. It its March 2014 Communication on Return Policy, the European Commission assessed both the legal and practical application of the alternatives to detention in 31 countries. In total, the examined countries reported 87 cases of a legal basis in their domestic legislation for an alternative to detention, comprised in the four categories enumerated in the EMN report. When looking at the practical application, out of these 87 reported domestic legal provisions on alternatives, only 32 percent has been used in practice, in 23 percent of cases there was no practical application, while for the remaining 45 percent there was no information about their use in practice.
Impact of detention
The final, but one of the key objectives of the report was to identify whether the use of detention or alternatives to detention contribute to the effectiveness of return polices and international protection procedures. The study acknowledges that the impact of detention and alternatives to detention on the effectiveness of migration procedures was difficult to measure because very little data was available to evaluate this question. It makes however a few points in this respect. It notes that the risk of absconding could be greater in case of alternatives to detention, since such a risk does not exist when person is put in detention. On the other hand, alternatives are less costly than detention. Most importantly, the report finds that in overall the impact of both detention and alternatives to detention on the ability of states to effect a return appears to be insignificant, to the contrary to other factors, like having travel documents for the person to be deported.
These findings invite us to make some concluding comments. Where a risk of absconding during return procedures can be minimalized by reliance on less costly alternatives to detention, but states nevertheless opt for detention, this may show that detention offers some (hidden) advantages for states. The same holds true in cases of systematic detention, for prolonged periods, of persons who cannot be deported. Arguably, despite being formally an administrative and non-punitive measure, immigration detention is sometimes used by states as a deterrent, which is a typical function of criminal incarceration. Placing migrant in detention may aim at compelling him to collaborate with authorities in view of obtaining travel documents or agreeing to return voluntarily. The use of detention for such criminal-like purposes appears to be beneficial for States, while at the same time makes non-citizens more vulnerable to abuses.
Barnard & Peers: chapter 26
Photo: Amygdaleza detention centre in Greece, credit: www.metamute.org