The EU Returns Directive and the Use of Prisons for Detaining Migrants in Europe

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

Only Nixon could go to China: Could Juncker be a reformist Commission President?

 

Steve Peers

Just as all observers of British politics know that ‘a week is a long time in politics’, their American counterparts know that ‘only Nixon could go to China’. The basic idea behind the latter catchphrase is that only a politician with a firmly established reputation could convince his or her supporters to back a significant change of course. In Nixon’s case, only a firm anti-Communist could convince American conservatives that a rapprochement with Communist China was a good idea.  

Could this principle be relevant to the European Union? The most recent elections for the European Parliament (EP) resulted in an increased vote for anti-EU parties in a number of Member States. As a result, it has been argued by David Cameron and others that Jean-Claude Juncker, who is the preferred candidate to be the next President of the European Commission of the political party which won the most seats in the EP (the ‘European People’s Party’ or EPP), should not be the next President, because he is not reformist enough as he is too much of an ‘old hand’ in EU politics. But it is arguable that in fact, a policy of EU reform could only be carried out by a candidate with a good understanding of how the existing system works, and how to use it.

Secondly, it has been argued in recent days that the very idea of selecting a Commission President based on the nomination of the party which wins the largest number of seats in the EP is wrong in principle – or conversely that it is undemocratic and unprincipled. But the better view is that neither of these views is correct. Rather, the Treaty drafters created a system of dual legitimacy for the selection of the President, albeit one which provides for a greater role for the European Parliament than before.

These two arguments are developed below (in reverse order). But first, a little background for those new to the issue (given that the press has ignored it until recently).

Background

Traditionally, the Commission President was chosen by the heads of State and government of EU Member States unanimously. Over time, the national veto was removed and so the European Council (which consists of those heads of state and government) votes by a qualified majority on his issue. Also over time, the European Parliament was given the power to approve the nominee for President, although it has never rejected a nominee in practice.

The Treaty of Lisbon kept this underlying procedure intact, but refers to it differently. Now Article 17 TEU states that the Parliament ‘elects’ the Commission President. But the person which the EP votes is still nominated by the European Council, although the Treaty now also states that the latter body shall ‘take into account’ the results of the EP elections.

Following the entry into force of the Treaty of Lisbon, the majority of EU political parties (the EPP, the Socialists, the Greens, the Left party and the Liberals) decided to nominate their preferred candidate for Commission President, on the assumption that the person nominated by the largest party ought to become the President of the Commission following the elections. The persons nominated by the parties have become known as ‘Spitzenkandidaten’. It was never clear, however, whether the European Council would accept this process.

The procedure for selecting the Commission President

In a previous post on this blog, written before the elections, I argued that despite some cogent arguments against the idea of the Spitzenkandidaten, in principle the idea should be supported as a move towards greater democratisation of the EU.

Let’s revisit the argument in light of the post-election furore, in which there are competing contentions (as mentioned above) that only a predominant role for the European Council, or for the European Parliament, would be democratic. Neither of these views is convincing.

First of all, the legal arguments. The Treaty clearly gives a role to the European Council, not only the European Parliament, as regards the process leading to the election of a Commission President. If the drafters of the Treaty of Lisbon had really wanted to remove the role of the European Council entirely, they could and would have done so. But they retained the role of that body in selecting the nominee for President.

On the other hand, the Treaty drafters not only retained the role of the European Parliament, but enhanced it, adding references to its role ‘electing’ the President and the requirement for the European Council to take the election results into account. If the Treaty drafters had not wanted to enhance the role of the EP, they would not have made these amendments. The best view is therefore that, as before, both institutions play a significant role in the appointment of the Commission President – but the EP, rather than the European Council, plays the lead role in that process.

Secondly, the broader political arguments. Asserting that either the EP or the European Council should be regarded as the sole or main source of democracy in the EU is risible. They both have democratic legitimacy – as expressly recognised by Article 10(2) TEU, which refers equally to the direct representation of citizens in the European Parliament and their indirect representation, via national parliaments and governments, in the European Council (and the Council, made up of national ministers).

This dual legitimacy is reflected throughout the EU legal order, in the form of the ordinary legislative procedure, the annual budget process, the European Parliament’s power of consent over a number of Council acts (for instance, most treaties to be concluded by the Council), and the power of either the EP or the Council to control delegated acts to be adopted by the Commission. In some cases (for instance, tax legislation), the Council has greater power than the EP, but sometimes the reverse is true (for instance, only the EP can force the resignation of the entire Commission; this is clearly consistent with an increasing role for the EP in appointing it). It logically follows that only a Commission President who commands broad support from both the European Parliament and the Member States can do the job effectively.

But what does all this mean in practice? It means that the increased role of the EP in the election of the Commission President ought to be respected. So the European Council ought to consider, first and foremost, the name of whichever of the Spitzenkandidaten could possibly command a majority of Members of the European Parliament (MEPs). The first such name is Juncker, given that his party got the biggest number of seats and a large majority of EP parties have already supported the idea that he try to obtain a majority in the EP first.

However, as the EU system currently stands, the European Council should not be expected to approve this name without further ado, but should retain the right to ask the candidate to make specific commitments in order to satisfy the broadest possible majority of Member States that he or she should be appointed.

In particular, in light of the increased vote for anti-European parties, it is more than reasonable to expect the next Commission President to commit himself or herself to significant reform of the EU. The question is therefore whether Juncker, described by some as a federalist supporting greater European integration, is the right person to carry out that reform.

Can Juncker be a reformist?

The starting place for assessing whether Juncker can be a ‘reformist’ Commission President is his own list of five priorities. These include a commitment to discuss a possible renegotiation of UK membership of the EU, referring expressly to David Cameron’s own list of demands (which were discussed in an earlier blog post). At the same time, another Juncker priority is a bigger role for the EU, in relation to monetary union – but as regards the Eurozone Member States only, specifically exempting the UK.

Another Juncker priority is the completion of negotiations (already underway) for a free trade deal between the EU and the United States. This prospect is increasingly controversial (at least in the EU), although it is hard to judge its merits at present without having any idea what the final deal will consist of. However, the idea of such a deal appears to have broad support across the UK’s political spectrum. If it is agreed, it will confound the argument of those who say that the UK needs to leave the EU in order to increase its trade with non-EU countries. But if it is not agreed, then those arguments will be confirmed, at least in part (the EU has negotiated, and is negotiating, free trade deals with many other countries).

Admittedly, Juncker’s list of priorities places qualifications on his support for an EU/US free trade deal, in particular as regards food safety and data protection laws. But reservations like these are shared in a number of national capitals and parliaments and among a number of MEPs. They must be addressed if any trade agreement is to have any chance of being ratified. A more evangelical and uncritical supporter of an EU/US trade agreement would perhaps not be able to persuade as many governments or parliamentarians to support the final deal. In particular, the European Parliament might now contain more MEPs who oppose a potential deal, but Juncker, as the first ever Spitzenkandidate to take office, might be best placed to convince them to support it.

Juncker’s other two priorities concern growth-related policies such as the digital single market, and an energy union for the EU. Both these ideas have broad support across the EU and are not specifically or necessarily federalist. Indeed, the development of the EU’s single market has always been at the forefront of the reasons for the Conservative party’s support of the EU.

So Juncker’s priorities are not as federalist as has been suggested, and already include some elements of reform. Certainly, more reform is needed: the next Commission should ensure that the EU is more transparent, devolves more power to Member States where there is a good case for this, and addresses other public concerns.

Therefore, the European Council should request specific commitments from Juncker on these sorts of issues. But it should not be forgotten that the Commission President will not be the only beast in the EU’s political jungle. Any proposed legislation will still have to be agreed in the EP and the Council. More broadly, Member States set the broad political direction of the EU when their leaders meet in the European Council, and have full power to appoint the President of that body (Herman van Rompuy cannot be reappointed to that job after 1 November 2014).

And political innovations are always possible. For instance, the European Council could set up a high-level body, including (for instance) Tony Blair and Nicolas Sarkozy, to report back in the near future with a list of specific recommendations on reform of the EU. Juncker could be asked to commit to a strong role for a (British?) Vice-President of the Commission in charge of the reform process. More specifically, it might be useful for the European Council and the EP to agree a set of common rules, in the form of a joint statement or inter-institutional agreement, as regards their respective roles in the process for selecting the Commission President.

For an EU reform policy to work, a Commission President with stronger links to the European Parliament might have a better chance of seeing policies supported in that institution, and an ‘old hand’ at EU politics will know more about how to get things done in practice than a newcomer. Juncker is the only candidate who has both strong links to the EP and intergovernmental experience. The current controversy over his potential appointment could be resolved if his critics could acknowledge that indeed, only Nixon could have gone to China.

 

Barnard & Peers: chapter 3