Human rights v the European Arrest Warrant? The legality of surrender detention after 90 days

Joske Graat, PhD student, Utrecht University

The Amsterdam District Court, which has the exclusive jurisdiction in the Netherlands to decide on incoming European Arrest Warrants (EAW), currently finds itself stuck between national rules and EU law obligations on detention and provisional release.  According to the Dutch Surrender Act (SA), the requested person needs to be (provisionally) released 90 days after the receipt of the EAW if the court has not delivered a decision by then. In 2015, the Court of Justice of the European Union (CJEU) decided in Lanigan (discussed here) that the Framework Decision on the European Arrest Warrant (FDEAW) does not require the release of the requested person after 90 days as national courts need to be able to ensure that the substantive conditions for surrender are at all times guaranteed. Consequently, extending the detention beyond this term is allowed in compliance with national rules. This is, however, exactly where the trouble starts in the Netherlands, since article 22(4) SA does not allow for such an extension. As a result, the strict obligation under national law to release the requested person might clash with the EU obligation to ensure the effectiveness of the surrender procedure.

We will see that the solution of the Amsterdam District Court to this problem, which is to interpret Dutch legislation in the light of the FDEAW, is itself problematic. In my opinion, the interpretation of the relevant provisions interferes with the legal certainty of the requested person and constitutes a contra legem interpretation. The legal certainty concerns have in fact resulted in a preliminary question to the CJEU, but it is questionable whether any answer would solve the problem at hand or would further complicate matters. (The CJEU has fast-tracked the case, and an Advocate-General’s opinion is due on November 6th) Hence, I would argue that it is time for the Dutch legislator to step in.

The issue of clashing national and European obligations regarding detention has become increasingly urgent as it becomes – as a result of other EU law obligations - ever more difficult to reach a decision on an EAW within 90 days. These obligations include the duty to refer preliminary questions and the obligation established in Aranyosi & Căldăraru (discussed here) to ask the issuing state for information contradicting a possible violation of article 4 Charter of Fundamental Rights of the European Union (CFR). Fulfilling these obligations often prolongs surrender proceedings and could result in the release of requested persons, even if the risk of absconding is real.  In the latter case, the order to release would violate the general obligation in Article 17 FDEAW to ensure that the substantive conditions for surrender remain guaranteed.

As I stated before, the Amsterdam District Court tried to find a way out in seeking to interpret Dutch legislation in conformity with the FDEAW. It ruled that Article 22 SA not only contains the power to extend the decision term after 90-days, but also includes the competence to suspend the 90-day term before it has lapsed. In case of the latter, the 90-day term is barred and thus the requested person might de facto be detained for more than 90 days. This possible effect of the new interpretation of Article 22 SA has been criticized in the light of the right to liberty in article 5 European Convention on Human Rights (ECHR) and 6 CFR.

A complaint was filed before the European Court of Human Rights (ECtHR), questioning whether the interpretation of Article 22 SA violates the requirement of a clear legal basis for detention in article 5(1)(f) ECHR. Remarkably, the Dutch government contended that this requirement has indeed been violated and has offered compensation for the unlawful detention. Unfortunately, though, the ECtHR therefore, struck the case, which was not decided on the merits. Meanwhile the Amsterdam District Court itself has recently requested a preliminary ruling on whether legal certainty as protected by Article 6 CFR is violated by the current interpretation of Article 22 SA.

In my opinion, this interpretation of Article 22 SA is not only an unjustified interference with the principle of legal certainty; it is also a contra legem interpretation. To start with the former. It is true that the current case law of the CJEU interprets legal certainty as a restriction to the duty of conform interpretation (sometimes called ‘indirect effect’) in a narrow manner. Legal certainty bars conform interpretation when this would result in determining or aggravating criminal liability on the basis of the FDEAW alone. In this sense, legal certainty is obviously no barrier to the current interpretation of Article 22 SA.

However, the general scope of the principle of legal certainty is not restricted to establishing or aggravating criminal liability. The principle is also part of Article 5 ECHR and 6 CFR which demand that the procedure for detention pending extradition is sufficiently accessible, precise and foreseeable to prevent arbitrary interferences with the right to liberty. Even though the broad concept of ‘the law’ in Article 5 ECHR, which includes both formal statutes and case law, allows the interpretation of a written rule in jurisprudence, the ECtHR has decided in past cases that a violation of Article 5 ECHR may occur when the national authorities do not interpret or apply the rules on extradition detention in a uniform manner. These cases concerned diverging opinions of national judicial authorities regarding the application of time limits and the use of a particular national provision as a legal basis for detention. The situation at hand is slightly different, since it concerns a difference in opinion between the court and the Dutch legislator, who stated explicitly that the requested person should be released after 90 days. However, I would argue that a similar risk of arbitrariness and threat to legal certainty exists in this situation. Can we really speak of a sufficiently foreseeable and accessible procedure for surrender detention when the judiciary and the legislator disagree on the interpretation of Article 22 SA?

In case the CJEU were to find the interpretation of Article 22 SA compatible with legal certainty, it should still be considered contra legem. This restriction to the duty of conform interpretation is often connected to the legal certainty principle but constitutes essentially a different test. In my opinion, the current interpretation of Article 22 SA contradicts the wording of the provision. The text as well as the intention of the legislator are crystal clear. Release after 90 days means release after 90 days. In addition, suspending a decision means in common parlance ‘halting or stopping’ an ongoing term which has not yet lapsed, whereas extending means ‘adding’ time to a term which has already lapsed. Hence the wording and meaning of Article 22 SA simply does not allow the interpretation as it follows from the case law of the Amsterdam District Court.

Lastly, we should also view the consequences of a rejection of the current interpretation of Article 22 SA. Is the Amsterdam District Court provided with the means to solve the remaining clash between its duties when an interpretation of the Dutch rule in conformity with the FDEAW is impossible? The answer is – at least for now - that it is not. This could change if the CJEU in the future decides that the primacy rule also applies to former third-pillar framework decisions. This question has equally been put before the CJEU by the Amsterdam District Court, but has remained yet unanswered (the case is still pending).

Application of the primacy rule would bring along its own problems however. It would resolve the clash between EU obligations and national law but might at the same time harm the legal certainty of the requested person. After all, it will depend on the concrete circumstances of each case whether the decision-term will be suspended or not and, therefore, whether Article 22 SA will be applied or not. If this effect would be corrected by a legal certainty exception to the primacy rule, legal certainty may be ensured, but the clash between EU law and national law would continue to exist.

The devilish dilemma for the Amsterdam District Court may thus not easily be solved by the CJEU. It is indeed difficult to see how any decision of the CJEU would not further complicate matters rather than solve them. Most likely the CJEU will not be able to provide the Amsterdam District Court with a way out of its impasse while at the same time protecting legal certainty. This brings another state authority in the picture: the Dutch legislator. This authority could in fact quite easily solve the problem. A simple adaption of Article 22(4) SA changing it into a discretionary competence instead of an obligation would suffice. In other words, it is time for the national legislator to come to the rescue of the Amsterdam District Court.

This blog is based on a publication in Strafblad in May 2018.

J.J.M. Graat, ‘Een dilemma voor de Overleveringskamer’, Strafblad 2018(2) 20.

Barnard & Peers: chapter 25

JHA4: chapter II:3

Photo credit: The Panopticon Chronicles

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

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.

Conclusions

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