Immigration detention in Europe: What are the facts? A new European Migration Network Study

 

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 ruledthat 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, Greecepolice 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

Read More

Unaccompanied minor asylum-seekers: a step in the right direction?

Steve Peers

The EU’s Dublin system on the allocation of responsibility for asylum-seekers, which sets out rules determining which single Member State has responsibility for considering an asylum-seeker’s application, has long been decried as unworkable and an infringement of human rights. These broader arguments will be addressed in a future post on this blog, but for the moment it’s a good time to have a look at yesterday’s proposal from the Commission to ameliorate the Dublin system’s effects a little.

The proposal only covers applications by unaccompanied minors, who make up a small proportion of the total number of asylum-seekers. Nevertheless, they constitute a particularly vulnerable group. Currently, the Dublin III Regulation states that the Member State responsible for an unaccompanied minor asylum-seeker is the Member State where a family member or sibling of the minor is legally present, if that is in the best interests of the child. A ‘family member’ is defined as a spouse, parent or guardian (if the minor is unmarried), or child of the asylum-seeker, if the family already existed in the country of origin. If the minor is married but his or her spouse is not in the EU, then the Member State where his or parents are legally present is responsible.

If there are no such persons on the territory of a Member State, then the Member State where a ‘relative’ of the unaccompanied minor is legally present is responsible, if that relative can take care of him or her.  A ‘relative’ is defined as an aunt, uncle or grandparent.

If there are family members, siblings or relatives in multiple Member States, then the responsible Member State is decided on the basis of the best interests of the child.

Finally, if no such persons can be found, the ‘default’ rule is that the Member State responsible is the State where the unaccompanied minor has applied for asylum, if that is in his or her best interests. But the legislation does not expressly address how this rule applies if the minor applies for asylum in more than one Member State.

When the Dublin III Regulation was negotiated in 2012, these provisions were hotly disputed between the European Parliament and the Council. The two institutions finally agreed to leave the default rule untouched, since there was a pending case on the interpretation of that rule before the CJEU. However, they adopted a joint declaration calling on the Commission to consider making a proposal to amend the legislation as regards that issue once the Court had delivered its ruling.

The Court gave its ruling in that case (MA) in June 2013, and the Commission has now presented its proposal. According to the Court, where an unaccompanied minor has already made an application for asylum in one Member State, and then proceeds to make an application in another one, the default rule should be interpreted to mean that the Member State where the most recent application was made is responsible for the application.

In the Court’s view, this interpretation was necessary first of all for literal reasons, as the legislation does not refer to the first Member State where the application was made. Secondly, unaccompanied minors were vulnerable persons, so the procedure to apply the Dublin rules should be as short as possible. Finally, this interpretation was most consistent with the ‘best interest of the child’, as required by Article 24 of the EU Charter of Fundamental Rights.

Yesterday’s proposal would first of all entrench the Court’s interpretation as an express rule in the Dublin Regulation, covering all cases where the asylum-seeker had applied in multiple Member States. This is the interpretation that the EP favoured, and had tried to fight for as an express rule back in 2012.

It would also set out a new rule which would apply when the unaccompanied minor has made an asylum application in one Member State, and is present in a second Member State, but has notmade an application in the second Member State.  In that case, the second Member State should ‘inform’ the child of the possibility of applying for asylum there, and give him or her an ‘effective opportunity’ to apply.

If the minor takes up the opportunity to apply for asylum in the second Member State, that Member State becomes responsible for the application. If he or she does not apply, then the Member State where he or she has most recently applied is responsible.

The new proposal also specifies that the Member States concerned shall cooperate to establish what the best interests of the child are. Finally, it sets out an express rule on Member States informing each other of their decisions; the CJEU had already established such an obligation in the MA judgment.

Comments

In principle this proposal is very welcome, given that it exempts unaccompanied minors from the full rigour of the Dublin rules. While this might reduce the pressure to reform those rules, there is little prospect of a fundamental change in those rules (at least at the EU legislature's behest; the courts may be a different matter). So at least one category of vulnerable persons can escape from them. 

More particularly, the proposal both confirms the ‘applicant’s choice’ rule for unaccompanied minors without family members first established by last year’s judgment, and also extends that rule to more situations. However, there are certain limits on the proposal, and flaws which could be improved.

First of all, it should be noted that the proposal does not cover the position of those whose application for asylum has already been rejected in another Member State. But the Court of Justice referred to that issue in its MA judgment, noting that in such cases the second Member State has the option to treat the application as inadmissible in accordance with the EU’s asylum procedures rules. Presumably that rule would continue to apply here.

On this point, however, in principle there should not be many fast-track refusals of applications by unaccompanied minors, given the convoluted exceptions from some of the fast-track rules set out in the second-phase Directive on asylum procedures.

Secondly, the new amendment would not clarify what is meant by the obligation to ‘inform’ the child about applying for asylum and give him or her an ‘effective opportunity’ to apply for asylum. Although there is a rule in the Regulation already spelling out an obligation to inform asylum-seekers about Dublin rules, it only applies once the person concerned has applied for asylum. So it doesn’t cover the position of those who haven’t applied yet. There should be express rules on this issue, in order to ensure that the child is made fully aware of the choice of making a fresh application.

As for the effective opportunity to apply for asylum, there is a (rather vague) rule on this issue in the second-phase Directive on asylum procedures. But it isn’t clear if the proposed new rules in the Dublin Regulation would confer less, more or the same degree of protection than the rules in the Directive.

Thirdly, the prospect of Member States deciding between themselves on what is in the best interests of the child is problematic. Surely, in accordance with the EU Charter, the child has a right to express a view on this issue, especially since EU asylum law guarantees him or her the right to a representative for this very purpose? So the legislation should guarantee that any decision which Member States take which is purportedly in the best interests of the child should be open to challenge, following a prior right to a hearing and the disclosure of relevant information on this subject.

Next, the proposal may mean that more Member States in practice embark on the controversial practice of trying to determine the age of teenagers who claim to be 'minors' (the EU legislation defines this as being under 18). The asylum procedures Directive has rules on this issue, but there are no rules on what happens if the person turns 18 during the procedure.  

Finally, it must be noted that the rules will only be relevant for those minors who have the effective possibility of moving between Member States. They will need some knowledge of which Member States they might wish to apply to, and how to get there, as well as the money to arrange for their travel. Furthermore, they will obviously not be able to move to another Member State in order to apply there if they are in detention. On this point, it should be noted that the revised reception conditions Directive provides that unaccompanied minors can only be detained in ‘exceptional circumstances’.

Given the freedom of unaccompanied minors to make applications in another Member State, it cannot be argued that this possibility justifies their detention. In fact, the grounds for detention in the reception conditions Directive do not provide for such a case. Similarly, while the Dublin rules do allow detention if there is a ‘significant risk of absconding’, it is difficult to see how that ground for detention can apply to unaccompanied minors in light of these rules.  

Barnard & Peers: chapter 9, chapter 26 

Read More

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

Read More

The EU’s Returns Directive: Does it improve or worsen the lives of irregular migrants?

Steve Peers

Many EU citizens are concerned about the social and economic impact of immigration, particularly irregular (sometimes called ‘illegal’) migration of non-EU citizens (third-country nationals) who do not have a right to enter or stay on the territory of an EU Member State. However, others are more concerned to ensure that irregular migrants are treated humanely and decently. To control and regulate irregular migration, the EU has adopted a number of measures, the most prominent of which is known as the ‘Returns Directive’. This Directive, adopted in 2008, governs a broad range of issues, in particular an obligation to return irregular migrants, their treatment during expulsion proceedings, entry bans, procedural rights and the grounds and conditions for detention.

When the Returns Directive was adopted, it was controversial among NGOs and the academic world, because of a perception that it took an unduly harsh approach on these issues. In the five years since its adoption, the Directive has been the subject of much litigation before the Court of Justice of the European Union (CJEU), largely (but not only) as regards its detention rules. We now have the opportunity to consider the impact of the Directive more fully, in light of today’s report by the European Commission on its application. This report forms part of a broader reflection by the Commission on EU expulsion policy. The Commission’s analysis of the implementation of the Directive, and this reflection on the broader aspects of returns policy, should be considered in turn.

Implementing the Returns Directive

Member States had to implement the Directive by Christmas Eve 2010, and the European Commission is required to report on its implementation every three years. The Directive does not apply to the UK and Ireland, but to the extent that it applies to those who enter the territory without authorisation, it applies to Denmark and the Schengen associates (Norway, Iceland, Switzerland and Liechtenstein).

Interestingly, according to the report, the Commission has already embarked upon a programme to ensure the correct implementation of the Directive in the Member States. The report summarises the results of this programme, by indicating how many Member States still needed to change their law after the transposition deadline in order to comply with key rules in the Directive, and how many of those States have implemented those changes.

In particular:

 - 6 out of 11 Member States have clarified the concept of ‘risk of absconding’ (an important issue as regards grounds for detention);

- 6 out of 7 Member States have changed their law to make clear that detention is not justified if there is no reasonable prospect of removal;

 - 4 out of 6 Member States now admit NGOs and international bodies to detention centres;

 - 4 out of 6 Member States now provide for free legal assistance to irregular migrants, subject to the conditions set out in the Directive;

- 13 out of 16 Member States have set up a forced return monitoring system;

 - 11 out of 14 Member States now take account of the EU guidelines on forced returns by air.

 The Commission then examines a number of specific legal issues in detail. As regards detention, where the Directive requires a review of detention after a ‘reasonable’ period, there is a wide variation between Member States, with some requiring frequent reviews and some providing only for a review at the end of the initial six-month detention period. A six-month wait for a review of detention cannot plausibly be considered to be a ‘reasonable’ period, and moreover frustrates the intention of providing for a review in the first place, since in principle detention can only be justified for six months, with a further extension of up to 12 months only on limited grounds. However, the Commission does not comment on this issue, or promise to challenge the Member State(s) in question. The best interpretation of the ‘reasonable’ review period is that, in the absence of frequent ex officio reviews, detention must be reviewed whenever the migrant presents a prima facie case that the grounds for detention are no longer satisfied.

It would be useful to know how often appeals against detention are successful and on what grounds, but the Commission does not discuss this issue. The Commission admits that it does not have statistics on the grounds for which irregular migrants are detained.

Next, the Commission presents details of the development of alternatives to detention in a number of Member States, although it does not present empirical evidence of how often these alternatives are applied in practice, as compared to how many people are detained, and how the Directive has changed the position in practice.

The Commission refers to some good practice as to the treatment of irregular migrants who cannot be removed, but the Directive does not address this issue in detail.

As for the maximum length of detention, the Commission indicates that 12 Member States reduced their maximum period to the 18-month maximum in the Directive after it was adopted, while another 8 Member States increased their detention period up to 18 months. Five Member States left their detention periods unchanged, while another three have apparently provided for detention where it did not exist previously (or perhaps the Commission simply lacks data on the prior rules applied in those Member States).

As the Commission points out, the maximum periods of detention are not usually applied, and it supplies data on how long irregular migrants are actually detained in practice to prove this point. But in the absence of data about how long irregular migrants were detained for in practice before the Directive was adopted, it is impossible to be sure what effect it has had on the actual length that migrants spent in detention.

Oddly, the Commission report says nothing about the rules governing the possible extended period of detention for up to 18 months. Since these extended periods can only be justified on a limited number of grounds, the Commission should have reported on whether Member States have properly complied with the relevant rules and how many people are detained for longer periods in practice.

The Commission rightly notes that inhumane detention conditions for irregular migrants fall within the scope of EU law, given the regulation of immigration detention by the Directive, and threatens to sue Member States on this point. But in light of the cardinal importance of the ban on torture or inhuman or degrading treatment, the Commission should surely feel a greater sense of urgency about this issue.

Next, the Directive requires that in principle immigration detainees cannot be detained in prisons. If it is not possible to apply this rule, then those immigration detainees being detained in prisons must be detained separately from other prisoners. The Commission reports that half of Member States do detain irregular migrants in prisons, and nine Member States do not comply with their obligations to keep immigration detainees separate from ordinary prisoners. It threatens infringement actions against these States. Moreover, as the Commission notes, there are pending cases before the CJEU addressing these issues (in fact, the cases which the Commission refers to will be heard by the CJEU before Easter).

As for other rules on detention conditions, the Commission reports that Member States have correctly legislated as regards detainees’ health care and communication with the outside world. But it reports that there are doubts about the correct application of these rules in practice, and promises follow-up. Similarly, Member States have achieved de jure, but arguably not de facto, compliance with the Directive’s rules on the detention of families and children. Here the Commission does not expressly promise to follow the issue up, even though it reports that significant numbers of children are being detained, and although the Directive states that children can only be detained as a ‘last resort’. Again, there are no statistics on the detention of children, and the effect of the Directive on this issue cannot be judged.

The Commission begins its assessment of the other provisions of the Directive by examining the rules on voluntary departure. Member States are obliged to offer irregular migrants the possibility of voluntary departure, with only limited exceptions. On this issue there have been many positive changes in national law, although the Commission does not assess what is actually happening in practice. It admits that it does not have statistics concerning voluntary departure, although it quotes a Frontex report indicating that 44% of removals in 2012 were voluntary, whereas 56% were forced. Without seeing the evolution of these statistics over time, the impact of the Directive on this point cannot be assessed.

Then the Commission moves on to consider the rules on monitoring of forced removals. Again, it notes positive legislative changes in many Member States, and threatens infringement actions against Member States which have not complied with the rules, but does not consider the practical impact. More precisely, while the report gives specific details as regards the joint return operations arranged by Frontex, the EU border agency (see below), it does not provide similar details as regards the percentage of returns by Member States which are actually monitored, and as to whether any complaints have been made.

Nor does the Commission assess: whether Member States have complied with their obligation to postpone removal in specified cases; how well Member States have complied with their overarching obligation to take account of the best interests of the child, family life, non-refoulement and the state of health of migrants when applying the Directive; and in particular whether removal operations have been ‘proportionate’, used only ‘reasonable force’, were consistent with ‘fundamental rights’ and observed the ‘dignity’ and ‘physical integrity’ of irregular migrants.

According to the report, most Member States have exercised the options to exclude from the scope of the Directive those being expelled due to a criminal offence, and those who were apprehended attempting irregular entry. However, the Commission does not assess whether Member States have interpreted these exceptions correctly in light of the CJEU’s case law, which makes clear that the ‘criminal law’ exception cannot apply simply because irregular entry or residence is a criminal offence in a Member State.

Even when irregular migrants are excluded from the scope of the Directive because they were apprehended attempting irregular entry, the Directive nevertheless requires that Member States apply some key rules to protect the persons concerned, as regards the conduct of removals, detention conditions, non-refoulement and emergency health care. The report states that these rules were applied in the ‘majority’ of cases (without further clarification), but appears rather insouciant about the cases where the rules were not applied.

As for the procedural rights of irregular migrants, there is again de jure compliance but some de facto non-compliance in practice, which the Commission largely does not promise to follow up on, except as regards the rules on legal aid. The majority of Member States do not provide for automatic suspensive effect of appeals.

On the important question of whether irregular migration can be criminalised, the Commission correctly notes that this issue is not directly regulated by the Directive, but provides very useful maps of which Member States criminalise irregular entry and/or residence, and by which means (fines or custodial sentences). As the Commission points out, the case law of the CJEU has curtailed Member States’ ability to impose custodial sentences for irregular migration, on the grounds that this interferes with the effectiveness of the removal process. It states that infringement procedures are underway to ensure the correct application of this case law by Member States.

Next, as regards the obligation in principle to expel irregular migrants set out in the Directive, the Commission states that this has had no impact on the numbers of apprehensions of irregular migrants. But one could hardly expect it to do so, since the rule does not concern apprehension as such. The key issue is whether the Directive has affected the numbers of irregular migrants who are subjected to removal orders after their apprehension, and the number of cases where these removal orders are carried out. While the Commission provides overall statistics on the numbers of apprehensions, removal orders, and removals carried out from 2010-2012, it makes no attempt to link these statistics to the application of the Directive.

Finally, as regards the rules on entry bans, the report indicates a convergence around the five-year maximum entry ban period which applies to most cases, with six Member States increasing the number of entry bans and eight Member States reducing the maximum time limits for such bans. Again, detailed statistics on the use of such bans in practice are not available, and the Commission does not assess Member States’ application of the detailed exceptions to the general rules in much detail.

Broader aspects of expulsion policy

The Commission’s assessment of the broader aspects of expulsion policy begins with an analysis of the role of Frontex, the EU’s border control agency, as regards coordinating joint expulsions. According to the report, Frontex arranges the joint expulsions of about 2000 irregular migrants a year, and about half of these joint expulsions are monitored, with no complaints in practice. The Commission urges Frontex to ensure that all joint expulsions are monitored, although its position is weakened by its questionable suggestion that Frontex is not obliged to do this. It refers to the appointment of a Frontex Fundamental Rights Officer, who has competence to examine the compliance of Frontex joint operations with fundamental rights, but does not assess how well this task is being carried out in practice. In particular, the Commission does not refer to the recent recommendation of the European Ombudsman that Frontex consider complaints from individuals affected by its activities.

As for future developments, the Commission intends to draw up a non-binding Returns Handbook regarding the implementation of the Directive. It also endorses a study on alternatives to detention being drawn up by the European Migration Network. It will consider proposing to legislate for an obligation to issue alerts in the Schengen Information System every time a Member State issues an entry ban, when it reviews that System in 2016, although it states that this already happens in practice in every case. The Commission also encourages the European Migration Network to draw up a list of best practices in the operation of returns procedures, supports the codification of Council of Europe rules on detention conditions and seeks to continue (without any concrete details) cooperation and dialogue with third States on returns issues. On the latter point, there is a stark lack of transparency as regards Member States’ arrangements with third countries, and about what happens to returned persons in practice. Finally, the Commission plans the collect information on best practice as regards the situation of people who cannot be removed, although it is not clear what it plans to do with this information.

Conclusions

Has the Returns directive improved or worsened the position of irregular migrants? When it was first adopted, the Directive was widely seen in the NGO community and among academics as a highly negative measure that offered little protection for irregular migrants, but rather encouraged Member States only to lower their standards. In light of the case law of the CJEU, and the information on national implementation of the Directive set out in this report, this assessment has to be more qualified.

It is clear that, as regards the length of detention and the use of entry bans, standards have been raised in some Member States and lowered in others. While it is always possible that the latter group of Member States would have lowered their standards on their own initiative, it cannot be ignored that they lowered those standards at the time of implementing the Directive, and that when they did so, they matched the Directive’s rules. This can hardly be a coincidence.

While the Commission’s efforts to ensure the correct implementation of the Directive are useful, they were also clearly rather tardy, and threatening to begin infringement proceedings only in 2014 is rather sluggish. As regards detention issues in particular, Article 5 ECHR requires all aspects of detention to be in accordance with the law, and this must logically refer to EU law as well as national law. So ensuring the correct enforcement of EU law as regards detention is particularly important.

Although the plan to draw up a guidance document as regards the Directive is welcome, the Commission could and should have done this earlier. If it had drawn up such guidance even before the Directive’s implementation deadline, rather than over three years afterwards, it could have avoided some errors in transposition. For instance, it recently drew up a guidance document as regards the implementation of the EU’s crime victims’ Directive, even though Member States do not have to apply that law until the autumn of 2015.

In fact, I can prove from personal experience that the Commission could have produced a guidance document on the Returns Directive before the implementation deadline, because I co-authored a lengthy report (with Olivier de Schutter of Leuven University) for the EU’s Fundamental Rights Agency back in 2009, on the correct interpretation of the Directive in light of international norms. Of course, it is hard for me to believe that the Commission could have disagreed with our interpretation! But even if it did so, it could at least have used our analysis as a source and a starting point for drawing up guidelines.

For the Returns Directive, the Commission’s tardiness matters less than it might, because of the significant role of the CJEU in practice as regards references from national courts concerning the Directive. In fact, this law has attracted more references to the CJEU than most EU immigration or asylum measures. While the Court’s case law has on the whole interpreted the Directive more liberally than its wording might suggest, it has focus more on the objective of efficient expulsion, rather than on irregular migrants’ human rights.

It is clear from the Commission’s report on this Directive that the usual dichotomy between law on the books and the practice of law on the ground is particularly sharp as regards this Directive. This cannot be easily solved by the usual means, so perhaps some fresh thinking is required. Building on the existing commitment to provide for an effective forced-return monitoring system, one way forward might be to expand on this system to require each Member State to provide for an effective supervision and complaints process (without prejudice to the role of the courts) as regards the implementation of this Directive.

The Directive required the Commission’s first implementation report to examine in particular the basic rules on detention, the provision on entry bans and the effect of the legal aid requirements upon Member States. Its report does examine the first two of these issues, but not the third. More broadly, the Commission does not expressly examine whether it ought to propose any amendments to the Directive.

This report raises implicit questions about the process of adopting implementation reports in areas of EU law, such as irregular migration, which impact greatly upon human rights. While this particular report does mention human rights issues, including inhumane detention conditions, it is arguable that such reports should always include a specific review of Member States’ compliance with the EU Charter of Fundamental Rights when applying the law, and also a consideration of whether the rights in the Charter could be promoted by amendments to the relevant legislation.

Overall, it's not possible to assess whether the Directive has positively or negatively affected irregular migrants without substantially more information about its application in practice. What we can conclude is that its correct and timely application has been hindered by the Commission’s initially cautious approach, and that we need to consider new ways of ensuring compliance with EU law in areas such as these.


 Barnard & Peers: chapter 26

Read More

The EU’s common rules on detention: how serious are Member States about protecting fundamental rights?

By Debbie Sayers, Legal Research Consultant, http://interalia.org.uk

On 5 February 2014, the Commission published a damning report on its ‘common rules on detention’ confirming that, at best, only 18 of 28 Member States have implemented any of the instruments. This is a quantitative not qualitative study: there has been no evaluation of how well these rules have been applied or whether they have improved the lot of individuals.

The poor level of implementation of these very basic commitments to improve the rights of detainees is of concern. Every year, tens of thousands of EU citizens are prosecuted for alleged crimes or convicted in another Member State of the EU yet there is significant evidence of unacceptable disparity in standards of detention within Europe. Fair Trials International (FTI) has long noted the existence of lengthy pre-trial detention and the inconsistent availability of alternatives to detention such as electronic tagging as well as “overcrowding, violence, poor healthcare and lack of facilities”. Likewise, the former Council of Europe Commissioner on Human Rights, Thomas Hammarberg, has described the use of pre-trial detention as “virtually systematic in a number of European countries" with rates of 42% in Italy.The structural and systemic problem of overcrowding in the Italian prison system led to a pilot judgment by the ECtHR in 2013 which condemned Italy for inhuman and degrading treatment in overcrowded jails. The evidence of the need for action is clear.

Mutual recognition and a lack of mutual trust

To start at the beginning, the term ‘common detention rules’ relates to three mutual recognition Framework Decisions (FD) agreed by the EU to be implemented by 2011 and 2012 by all Member States. They form part of a broader judicial cooperation agenda which has focussed on the mutual recognition of judicial decisions and the approximation of law. The European Arrest Warrant [EAW] is the most notorious of these instruments.

Mutual recognition allows judicial decisions to ‘move’ freely between EU Member States based on the presumed existence of “mutual trust” between them. The approach has been predominantly prosecutorial, but, as experience with the operation of the EAW has demonstrated the fallacy of assumptions about trust, there have been increased efforts to establish specific individual safeguards to support the mutual recognition agenda. In 2009, the Council of the EU set out a ‘Roadmap’ for harmonizing some criminal procedural standards to “enhance citizens' confidence that the European Union and its Member States will protect and guarantee their rights”. To date, three Directives (the Directiveon the right to interpretation and translation in criminal proceedings; the Directiveon the right to information in criminal proceedings; and the Directiveon the right of access to a lawyer) have been agreed with a further packagerecently proposed.

However, the EU had already taken action in respect of EU citizens who were non-residents in a Member State where they face criminal proceedings as it was recognised that, too often, they may end up in detention where residents may not. This can occur pre-trial, because of the fear of flight, and also at sentence, where non-custodial sentences may be considered inappropriate. The three instruments agreed were:

·         The Framework Decision on the Transfer of Prisoners to be implemented by 5.12.11. It allows a Member State to execute a prison sentence issued by another Member State against a person who remains in the first Member State. It also establishes a system for transferring convicted prisoners back to the Member State of nationality or habitual residence (or to another Member State with which they have close ties) to serve their prison sentence.

·         The Framework Decision on probation and alternative sanctions to be implemented by 6.12.11.  It applies to many alternatives to custody and to measures facilitating early release (e.g. an obligation not to enter certain localities, to carry out community service or instructions relating to residence or training or professional activities). The probation decision or other alternative sanction can be executed in another Member State, as long as the person consents.

·         The European Supervision Order (ESO) to be implemented by 1.12.12. It enables a non-custodial supervision (e.g. an obligation to remain at a specified place or an obligation to report at specified times to a specific authority) to be transferred from the Member State where non-resident is suspected of having committed the offence to Member State where they are normally resident., thus, hopefully avoiding pre-trial detention.

In relation to detention conditions, a Commission Green Paper on Detention was also published in 2011 acknowledging that “excessively long periods of pre-trial detention are detrimental to the individual, can prejudice judicial cooperation between the member states and do not represent the values for which the European Union stands”. Pragmatically, mutual trust is undermined by inconsistent and unfair detention arrangements and the EU needs to address this.

“Fewer than half of EU Member States have implemented common rules on detention”

It is in this context that the Commission published its report on the implementation of these ‘common rules on detention’. Rates of compliance are poor:

·         FD on the Transfer of Prisoners: only 18 Member States have implemented it. Austria, Belgium, Czech Republic, Denmark, Finland, France, Croatia, Hungary, Italy, Luxembourg, Latvia, Malta, Netherlands, Poland, Romania, Slovenia, Slovakia and the UK. Only Denmark, Finland, Italy, Luxembourg and the UK had implemented it by the deadline. This is the only instrument the UK has implemented.

·         FD on probation and alternative sanctions: only 14 Member States have implemented it - Austria, Belgium, Bulgaria, Czech Republic, Denmark, Finland, Croatia, Hungary, Latvia, Netherlands, Poland, Romania, Slovenia, and Slovakia.  Only Denmark and Finland had implemented it by the deadline.

·         European Supervision Order: only 12 Member States have implemented it - Austria, Czech Republic, Denmark, Finland, Croatia, Hungary, Latvia, Netherlands, Poland, Romania, Slovenia, Slovakia. Only Denmark, Finland, Latvia and Poland had implemented it by the deadline.

In relation to the implementation legislation itself, the Commission has now highlighted some key concerns arising from its analysis which will need to be addressed by all Member States:

·         Member States must set out an effective procedure to give a role to “the person concerned in the transfer process” under the various FDs.

·         The principle of mutual trust is to be respected by achieving “the right balance” between respect for the sentence originally imposed and the legal traditions of Member States.

·         Member States must properly implement the duty to provide information about the sentence to avoid any differences discouraging use of the instruments.

·         The Commission’s view is that adding additional grounds for refusal and making them mandatory “seem[s] to be both contrary to the letter and spirit of the Framework Decisions”.

·         The time limits are to be respected and should be exceeded only in exceptional circumstances”.

·         Those provisions which link the FD and the EAW should be implemented. For example, Article 21 (which allows for the return of a person by EAW if s/he has not complied with an ESO) have not properly been implemented. The Commission describes this as ‘regrettable’ as Article 21 “would be very useful to allow persons awaiting trial for relatively minor offences to go home”

·         The Commission rules the declarations made by four Member States (Ireland, Malta, Netherlands and Poland) in relation to transitional provisions on the transfer of prisoners invalid because they were made after the adoption of the FD.

Those who have transposed the instruments are still requested “to review and align their national implementation legislation with the provisions of the Framework Decisions”.

Enforcing compliance and creating trust

The three FDs are interconnected and linked to the EAW. In its press release, the Commission confirms pragmatically that

“The rules [are].. an essential element of a common European area of justice ….[and]… important tools to further social rehabilitation of prisoners and reduce the use of pre-trial detention. Their proper implementation is crucial.”

They also have “the potential to reduce prison overcrowding and reduce prison budgets”.

There is an evident need for swift action to address these failures. From the perspective of the ‘suspect’, the non-adoption of the ESO by many Member States is concerning as it is a crucial ‘flanking measure’ for the EAW. FTI has long campaigned on the issue of bail in the EU, producing clear evidence of discrimination in the operation of decision-making (e.g. see the House of Lords report in 2007 on the European Supervision Order). The excessive and unfair use of detention for the non-resident suspect also undermines the right to a fair trial because it affects the suspect’s exercise of fair trial rights as well as the presumption of innocence. These fundamental rights are enshrined in Article 5 and 6 ECHR and Articles 6, 47 and 48 of the EU Charter of Fundamental Rights and merit active protection in practice. From the prosecution perspective too, cooperation cannot be made effective with such partial transposition.

 So what can be done? Infringement action against Member States is not possible until 1 December 2014 because of Article 10 of Protocol 36, which provides for a five-year waiting period before the Commission can sue Member States for non-implementation of EU ‘third pillar’ (criminal law and policing measures) adopted before the entry into force of the Treaty of Lisbon, such as these FDs. Whether the Commission will take such action at that point remains to be seen.

However, there is a broader point at stake: will these laws be used even if the FDs are implemented domestically and will they make any difference? The Commission’s reportnotes that the “limited figures available show that the Transfer of Prisoners is already used whereas no transfers have yet taken place under Probation and Alternative Sanctions and European Supervision Order”. We need to explore fully the reasons for the lack of commitment to these instruments. Is it a reflection of the prosecutorial drive behind the mutual recognition agenda or the absence of commitment to human rights protection? Is it the result of a lack of understanding (see FTI’s report) or weaknesses in training? Is it connected to resources, occupational cultures or a reluctance to cooperate? Or is it a mixture of all these factors? Over a hundred years ago, Roscoe Pound concluded that legislation which has not been the product of preliminary study of the conditions to which it was meant to apply will not respond accurately to social needs.Consequently, the process of making effective laws must go beyond statistics and data gathering to consider the human impact of its implementation.


Barnard & Peers: chapter 25

Read More