Immigration Detention Inwards Europe: What Are The Facts? A Novel European Migration Network Study

 

Izabella Majcher, Associate Researcher at Global Detention Project and PhD candidate inwards International Law at the Graduate Institute of International in addition to Development Studies is Geneva.

 

In November, the European Migration Network (EMN) released its Focussed Study titled “The utilisation of detention in addition to alternatives to detention inwards the context of immigration policies.” It constitutes a synthesis study based on national reports from 26 countries, prepared yesteryear the EMN National Contact Points (NCPs). The countries covered yesteryear the study included 25 European Union (EU) fellow 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, in addition to the United Kingdom) in addition to ane Schengen Associate province (Norway).

 

The aim of the study was to “identify similarities, differences in addition to best practices with regard to the utilisation of detention in addition to alternatives to detention inwards the context of (Member) States’ immigration policies.” There are 2 chief forms of immigration detention nether European Union law: pre-removal detention, which is regulated yesteryear the Returns Directive (2008/115/EC), in addition to asylum detention, governed mainly yesteryear the Reception Conditions Directive (2003/9/EC) in addition to its late adopted recast (2013/33/EU). This spider web log postal service volition briefly hash out the study yesteryear looking at its objectives (p. 8), namely to:

 

·         “Provide information on the scale of detention in addition to alternatives to detention inwards each participating Member State in addition to Kingdom of Norway yesteryear collecting statistics available on the disclose of third-country nationals (by category) that are dependent plain to these measures;

 

·         Identify the categories of third-country nationals that tin hold upwardly dependent plain to detention and/or provided an choice to detention;

 

·         Compare in addition to contrast the grounds for placing third-country nationals inwards detention in addition to / or providing alternatives to detention outlined inwards national legal frameworks, equally good equally the assessment procedures in addition to criteria used to attain decisions on detention inwards private cases;

 

·         Identify in addition to depict the dissimilar types of detention facilities in addition to alternatives to detention available in addition to used inwards (Member) States;

 

·         Collect whatever prove of the agency detention in addition to alternatives to detention contribute to the effectiveness of homecoming policies in addition to international protection procedures.”

 

Scale of immigration detention

 

The statistical information constitutes ane of the fundamental strengths of the report. The figures on the disclose of migrants inwards detention are specially relevant because the European Union statistical business office (Eurostat) does non render them, to the reverse to, for instance, the disclose of non-citizens apprehended or deported.

 

For all but 3 countries (Cyprus, Greece, in addition to Portugal) the study gives a sum disclose of immigration detainees inwards 2013, which was 92,575. This figure is telling. However, to fully grasp the dimension of immigration detention inwards Europe, the figures for all the province parties to the relevant European Union instruments over a few years are needed.

 

In 2013, the province which detained the highest disclose of non-citizens was French Republic (including French overseas territories) (38,266), followed yesteryear Espana (9,020), Republic of Hungary (6,496), Republic of Bulgaria (6,303), in addition to Kingdom of Belgium (6,285). On the other hand, the lowest disclose of immigration detainees was reported inwards Republic of Estonia (94), Slovakia (204), Republic of Latvia (221), in addition to Republic of Lithuania (243). In damage of variations of the disclose of detained migrants, betwixt 2009-2013 the highest growth was observed inwards Republic of Bulgaria (by to a greater extent than than 600 percent) in addition to Republic of Hungary (by 226 percent). On the other hand, the greatest decrease was recorded inwards Slovakia (by 65 percent) in addition to the Netherlands (by 53 percent).

 

Regrettably, few of the covered countries provided disaggregated statistics on the diverse categories of non-citizens amid the sum numbers of immigration detainees. Only nine countries provided information on the disclose of asylum seekers inwards detention in addition to v countries on the disclose of pre-removal detainees. The recast of the Reception Conditions Directive contains a listing of circumstances justifying detention of asylum seekers. Human rights advocates feared that this may trigger a to a greater extent than widespread utilisation of detention during asylum procedures. The deadline for transposition of the recast is set for July 2015 in addition to to engagement only a handful of countries receive got already transposed it. However inwards fellowship to ascertain whether these concerns receive got materialized, the information on the disclose of asylum seekers inwards detention should hold upwardly systematically collected already prior to the transposition of the recast.

 

Grounds for immigration detention

 

The study provides a useful overview of the most mutual grounds on which non-citizens tin hold upwardly detained nether the domestic legislation of the examined countries. With abide by to migrants inwards homecoming proceedings, the study highlights xi grounds set downwards inwards legislation of the states saltation yesteryear the Returns Directive (i.e. all countries covered yesteryear the study, except from the UK in addition to Ireland). They include: the direct chances of absconding (22 countries), avoidance in addition to hampering the removal physical care for (20 countries), inwards fellowship to resultant the removal (14 countries), non-compliance with the alternatives to detention (12 countries), threat to national safety in addition to populace fellowship (12 countries), non-compliance with the voluntary homecoming current (11 countries), the involve to flora identity (11 countries), in addition to reasonable grounds to believe that the somebody volition commit a offense (6 countries).

 

Amongst these grounds, only the starting fourth dimension 2 are explicitly set out inwards the Returns Directive. The 3rd ane (to resultant the removal) is also mentioned inwards the Directive, yet equally a full general rationale for placing migrants inwards pre-removal detention. The fact that at that spot are viii other grounds inwards the domestic legislation of the fellow member states saltation yesteryear the Directive, what did non entail whatever infringement proceedings yesteryear the European Commission, shows that, to the reverse to the opinion yesteryear the Directive’s proponents, the Directive does non render for an exhaustive listing of grounds. Undoubtedly, an exhaustive enumeration of the circumstances justifying deprivation of freedom would forbid states from systematically ordering detention.

 

The study defines immigration detention equally a non-punitive administrative mensurate (p. 8). Yet, 2 out of the higher upwardly listed grounds appear to become beyond administrative migration-enforcement rationale. Arguably detention on trouble organisation human relationship of threat to national safety in addition to populace fellowship in addition to direct chances that the non-citizen volition commit a offense aims at deterrence or incapacitation. It is submitted hither that if a migrant would indeed threaten populace order, he should hold upwardly dependent plain to criminal rather than migration laws. Conflating the functions of these distinct branches of law creates confusion in addition to feeds negative perception virtually migrants alongside the public.

 

In damage of detention of persons seeking international protection, the most mutual grounds include the involve to flora the person’s identity (17 countries), the direct chances of absconding (16 countries), the threat to national safety in addition to populace fellowship (15 countries), suspicion of abuse of the asylum physical care for (11 countries), the non-compliance with the alternatives to detention (9 countries), destroyed or forget identity documents (8 countries), in addition to argue to believe that the persons volition commit a offense (7 countries).

 

Upon the transposition of the recast Reception Conditions Directive, several states would involve to suit their domestic provisions containing circumstances justifying detention to comply with the Directive, since it sets out an exhaustive listing of grounds. These grounds include: determination of the identity in addition to nationality, determination of the elements of the asylum application that could non hold upwardly obtained inwards the absence of detention (particularly if at that spot is a direct chances of absconding), when border, return, or Dublin procedures are ongoing, in addition to for the protection of national safety in addition to populace order.

 

Review of detention

 

The report’s findings nether this heading are meaningful in addition to demonstrate how Member States participating inwards the Returns Directive took payoff of quite depression requirements of the Directive inwards damage of judicial command of detention. In fact, the lack of mandatory in addition to ex officio judicial supervision of detention appears to hold upwardly ane of the weaknesses of the Directive. Under the Directive, detention shall hold upwardly ordered yesteryear administrative or judicial authorities. As the study shows, inwards most of the countries government which create upwardly one's hear to arrest a migrant also send out an initial assessment of whether grounds for detention apply. Usually these are non-judicial bodies, such equally police line (11 countries), migration in addition to asylum government (10 countries), Interior Ministries (5 countries), in addition to border guards (5 countries). Only inwards nine countries is the determination to detain ultimately taken yesteryear a court. Thus, the vast bulk of the countries relied on the possibility nether the Directive to chore administrative bodies to fellowship detention. In such cases, the Directive obligates states to either render for a speedy judicial review of detention or grant the detainee the correct to apply for such a review. Obviously, the latter selection is less protective in addition to frequently migrants would involve legal assistance to hold upwardly able to exercise that right. Yet, this selection has been privileged yesteryear states. The information seat together inwards this department of the study demonstrate that inwards sixteen of the examined states, at that spot is no automatic periodic judicial review of detention. Administrative courts are only involved next application yesteryear the detainee.

 

Places of detention

 

Both the Returns Directive in addition to the recast Reception Conditions Directive prioritize the utilisation of specialized detention facilities for confining immigration detainees. In July 2014, the Court of Justice of the European Union interpreted the relevant provision set downwards inwards the Returns Directive in addition to ruled that the absence of specialized facilities inwards ane component of the Member State’s territory does non justify using prisons, if specialized facilities are available inwards other component of its territory.

 

This department of the study is confusing. The study uses the term “detention facility” when referring to specialized facilities. It provides that the utilisation of “detention facilities” is a “consolidated practices across all (Member) States, with the exception of Republic of Ireland where third-country national are detained inwards prisons” (p. 28). This tilt implicitly says that other countries utilisation specialized detention facilities, but that is far from the reality. In fact, Germany, for instance, uses prisons, Greece police line stations, patch Republic of Austria “police detention centres,” which are a peculiar variety of facility, confining, too immigrations detainees, also administrative detainees in addition to criminal suspects. The study inwards fact classifies immigration detention sections of High German prisons in addition to Austrian “police detention centres” equally specialized facilities. It also says that migrants tin hold upwardly detained inwards police line in addition to border stations inwards Hellenic Republic for a brusk time. This tilt seems to ignore a systematic practise yesteryear Greek authorities, confirmed yesteryear several monitoring bodies, of detaining migrants inwards such premises for the maximum length of detention.

 

It needs to hold upwardly highlighted that the report’s findings are based on the national reports written yesteryear EMN National Contact Points (NCPs). Out of 26 NCPs which drafted the national reports, eighteen are component of or piece of occupation nether the potency of the Ministry of Interior, 3 are national offices of the International Organization for Migration (IOM), patch only 3 include academic or enquiry institutions. The interest of the Ministries of Interior inwards the drafting of at to the lowest degree lxx per centum of the reports calls for reading with caution the positive findings flowing from these reports. In particular, inwards fellowship to receive got a to a greater extent than nuanced painting demonstrate of the utilisation of immigration detention inwards Europe, ane should assemble the information from academia in addition to relevant NGOs.

 

Alternatives to detention

 

The Returns Directive in addition to the recast Reception Conditions Directive require states to give priority to “less coercive measures.” The study enumerates the most mutual non-custodial alternatives to detention, including reporting obligations (23 countries), residence restrictions (18 countries), give upwardly of documents (15 countries), in addition to the loose on bail (13 countries). It does non yet clarify whether these alternatives to detention are entirely provided for inwards domestic legislation of examined countries, or are also used inwards practice. In fact, with abide by to the utilisation of alternatives to detention the divergence betwixt theory in addition to practise tends to hold upwardly considerable. It its March 2014 Communication on Return Policy, the European Commission assessed both the legal in addition to practical application of the alternatives to detention inwards 31 countries. In total, the examined countries reported 87 cases of a legal ground inwards their domestic legislation for an choice to detention, comprised inwards the 4 categories enumerated inwards the EMN report. When looking at the practical application, out of these 87 reported domestic legal provisions on alternatives, only 32 per centum has been used inwards practice, inwards 23 per centum of cases at that spot was no practical application, patch for the remaining 45 per centum at that spot was no information virtually their utilisation inwards practice.

 

Impact of detention

 

The final, but ane of the fundamental objectives of the study was to seat whether the utilisation of detention or alternatives to detention contribute to the effectiveness of homecoming polices in addition to international protection procedures. The study acknowledges that the touching on of detention in addition to alternatives to detention on the effectiveness of migration procedures was hard to mensurate because real petty information was available to evaluate this question. It makes yet a few points inwards this respect. It notes that the direct chances of absconding could hold upwardly greater inwards illustration of alternatives to detention, since such a direct chances does non be when somebody is seat inwards detention. On the other hand, alternatives are less costly than detention. Most importantly, the study finds that inwards overall the touching on of both detention in addition to alternatives to detention on the might of states to resultant a homecoming appears to hold upwardly insignificant, to the reverse to other factors, similar having move documents for the somebody to hold upwardly deported.

 

These findings invite us to brand unopen to final comments. Where a direct chances of absconding during homecoming procedures tin hold upwardly minimalized yesteryear reliance on less costly alternatives to detention, but states nevertheless opt for detention, this may demonstrate that detention offers unopen to (hidden) advantages for states. The same holds truthful inwards cases of systematic detention, for prolonged periods, of persons who cannot hold upwardly deported. Arguably, despite existence formally an administrative in addition to non-punitive measure, immigration detention is sometimes used yesteryear states equally a deterrent, which is a typical business office of criminal incarceration. Placing migrant inwards detention may aim at compelling him to collaborate with government inwards sentiment of obtaining move documents or agreeing to homecoming voluntarily. The utilisation of detention for such criminal-like purposes appears to hold upwardly beneficial for States, patch at the same fourth dimension makes non-citizens to a greater extent than vulnerable to abuses.

 

Barnard & Peers: chapter 26

 

Photo: Amygdaleza detention centre inwards Greece, credit: www.metamute.org

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