EU migration policy: comments on the results of the latest European Council

Steve Peers

Alongside ‘Grexit’ and ‘Brexit’, the upsurge in immigration to the European Union is a further crisis which the EU has to juggle simultaneously. The first round of EU reactions to the crisis culminated in the emergency EU summit (‘European Council’) in April. I discussed the results of that summit here. Subsequently, the Commission released its ‘Agenda’ on EU migration in mid-May (see discussion here), and its detailed proposals later that month (see discussion here). Last week the European Council discussed immigration issues again, and came to a number of conclusions. This blog post sets out those conclusions, with my comments annotated. (I have left out the third part of the conclusions, which vaguely promise more cooperation with third countries.)

It’s interesting to compare the final text with the last draft of the summit conclusions (see full text here). To make that comparison easy, I have indicated below what changed between the penultimate and final versions of the text. (Underlined words were added to the final version; words in strikeout were deleted from it).

I. MIGRATION

1. Europe needs a balanced and geographically comprehensive approach to migration, based on solidarity and responsibility. Following the decisions taken by the European Council last April, concrete measures have been taken to prevent further loss of life at sea, to find new ways of confronting smugglers and to intensify cooperation with countries of origin and transit, while respecting the right to seek asylum. The launch of the EUNAVFOR MED mission, decided on 22 June by the Council, is an important contribution in this respect. Operational action to tackle the traffickers and smugglers in accordance with international law is an essential part of our comprehensive approach.

The EU's smuggling mission has officially got underway already, but its second and third phases (where the boats are destroyed) cannot get started until the Libyan government or the Security Council endorse the operation. For details and criticism see here.

2. Further to the Commission's European Agenda on Migration, work should be taken forward on all dimensions of a comprehensive and systemic approach.

The summit conclusions in fact address much of the detail of the Agenda.

3. Wider efforts, including the reinforcement of the management of the Union’s external borders, are required to better contain the growing flows of illegal migration. Today, the European Council focused on three key dimensions which must be advanced in parallel: relocation/resettlement, return/readmission/reintegration and cooperation with countries of origin and transit. The Council will regularly assess progress in all three strands and report back later in the year.

As noted above, I have omitted the third dimension (cooperation with countries of origin and transit) from this blog post.

Relocation/resettlement

4. In the light of the current emergency situation and of our commitment to reinforce solidarity and responsibility, and in line with its April decision in all its regards, including paragraph 3, the European Council agreed on the following interlinked measures to help 60.000 people:

Paragraph 3 of the April conclusions refers to the EU interception and search and rescue missions in the Mediterranean. Odd that such missions dare not speak their name in these latest conclusions.

a) the temporary and exceptional relocation over two years from the frontline Member StatesItaly and Greece to other Member States of 40.000 persons in clear need of international protection, in which all Member States will participate;

The final version of the conclusions adds a footnote stating that the UK will not participate. The number of 40,000 matches the number in the Commission’s proposal. So does the two-year time-frame, and the focus on Italy and Greece. The reference to ‘persons in clear need of international protection’ suggests that the focus will remain on Syrians and Eritreans (as the Commission proposed), as refugee claims from these two nationalities have a very high success rate.

b) the rapid adoption by the Council of a Decision setting up a temporary and exceptional mechanism to this effect; to that end, all Member States will agree by consensus by the end of July on the distribution of such persons, reflecting the specific situations of Member States;

There is a commitment to adopt a legally binding text, although presumably its content will differ greatly from the Commission proposal, in particular because many Member States dislike the idea (or the detail) of the Commission’s proposals on distribution. The added agreement that the distribution will be agreed by ‘consensus’ means effectively that the numbers accepted in each Member State will be voluntary, although the Treaty calls for qualified majority voting on this issue. The added reference to ‘specific situations’ is (according to press briefings) intended to exempt Hungary and Bulgaria from obligations, in light of the large number of asylum-seekers they currently receive. Obviously it is hard to see how the legally binding target of 40,000 asylum-seekers can actually be met if Member States only have to volunteer to take the relevant numbers. If a Decision with such an obligation is adopted but the offers of admission fall short of 40,000, there could be an interesting legal question as to whether and how the numbers could still be enforced.

c) the setting up of reception and first reception structured border zones and facilities in the frontline Member States, with the active support of Member States' experts and of EASO, Frontex and Europol to ensure the swift identification, registration and fingerprinting of migrants ("hotspots"). This will allow to determine those who need international protection and those who do not. The Commission will draw up, in close cooperation with the hosting Member States, a roadmap by July 2015 on the legal, financial and operational aspects of these facilities;

The reference to ‘structured border zones’ in the earlier draft has been altered, perhaps because some perceived it as a form of quarantine. Frontex is the EU borders agency, and the EASO is the EU asylum support agency. They don’t have powers to fingerprint migrants etc as such, but they can help coordinate Member States’ actions. On the other hand, it’s not clear why Europol, the EU police agency, needs to be involved, and indeed the conclusions seem to call for it to exceed its legal powers. It has a potential role in investigating smugglers, but the conclusions refer only to its involvement in an immigration law process.

Fingerprinting of irregular migrants who cross the external borders, as well as asylum-seekers, is a long standing EU law obligation in the Eurodac Regulation, but frontline Member States have often been accused of not applying it. If more such people are fingerprinted, then it will be easier to guarantee their return from other Member States like the UK under the EU’s Dublin rules on asylum responsibility, if those migrants travel to another Member State and apply for asylum there. The Commission recently released a paper on coercive methods to fingerprint migrants, discussed here.  

d) the immediate provision of enhanced financial assistance to the frontline Member States to help alleviate the costs of receiving and processing applications for international protection;

An emergency EU budget increase has already been approved.

e) the agreement that all Member States will participate including through multilateral and national schemesin the resettling of 20.000 displaced persons in clear need of international protection, reflecting the specific situations of Member States.

This matches a non-binding Commission Recommendation on this issue, which has already been adopted. Resettlement means that the persons concerned are moved straight from refugee camps in countries like Lebanon or Turkey. In fact the wording (‘displaced persons’) also covers Syrians who have fled to camps elsewhere within Syria. Legally speaking this group of people aren’t ‘refugees’ since they haven’t left their home country; international law refers to people who have fled within their own countries but who still have great protection needs as ‘displaced persons’ instead. They could qualify as ‘refugees’ once reaching the EU, however, since they would necessarily then have left Syria. The UK has pledged a very small increase in the small numbers of refugees that it currently resettles.

Return/readmission/reintegration

5. Effective return, readmission and reintegration policies for those not qualifying for protection are an essential part of combating irregular illegal migration and will help discourage people from risking their lives. All tools shall be mobilised to promote readmission of irregular illegal migrants to countries of origin and transit, building on the ideas presented by the Commission at the Council on 16 June.

Notice the word ‘illegal’ was changed to ‘irregular’, to address objections that the word ‘illegal’ is the wrong term to use. There is a footnote referring to the letter and it can be found via Google, but it is hardly transparent not to attach it as an Annex to the Conclusions. It’s not hyperlinked to the conclusions either. But you can follow this link for the text of the Commission letter and discussion of it.

It must be noted that this section only applies to people who do not qualify as refugees or for some other form of protection. Some press stories had suggested, on the basis of leaked drafts of the conclusions, that the EU wants to ‘send all the migrants back’. This is patently false: this section is clearly limited in scope (‘those not qualifying for protection’) and the first section of the conclusions not only shows an intention to relocate people needing protection within the EU but also to bring more of them to the EU. Since a significant proportion of migrants come from Syria and Eritrea, and a huge proportion of their asylum claims are successful, anyone who claims that ‘the vast majority of people crossing the Mediterranean are economic migrants’ is quite simply lying.

In particular: a) high-level dialogues with the main countries of origin of irregular migrants should be launched by the High Representative as soon as possible, in close cooperation with the Member States. The Council, together with the Commission, will prepare a global package to support the negotiations with the third countries concerned;

Most of the issues here are not foreign policy issues as such, so the High Representative should only be discussing them in her role as the coordinator of her colleagues in the Commission, not as foreign policy representative. So this looks like an internal Commission power grab, although it’s probably also true that she will come with more political authority than the Home Affairs Commissioner. There may of course be a corresponding power struggle between national foreign and interior ministries here.

b) the Commission will ensure that readmission commitments are implemented effectively as soon as possible, notably those under the Cotonou Agreement, and that ongoing negotiations on readmission agreements are accelerated and concluded as soon as possible, while new negotiations will be launched with other third countries;

The ongoing negotiations are with Belarus (nearly complete), Morocco and Tunisia. Talks with Algeria and China were approved years ago, but never started. The ‘Cotonou’ countries are sub-Saharan African, Caribbean and small Pacific island States, although obviously the conclusions are referring only to African states. 

c) building on the "more-for-more" principle, EU assistance and policies will be used to create incentives for implementing existing readmission agreements and concluding new ones. Commitments set out in trade agreements regarding the temporary presence of persons for the provision of services should be used as an incentive to conclude readmission agreements; development policy tools should reinforce local capacity building, including for border control, asylum, counter-smuggling and reintegration;

The EU has concluded readmission treaties with most countries to the east and south-east by offering visa facilitation deals, and in some cases the long-term prospect of a visa waiver. It has also offered visa facilitation to Morocco and Tunisia. It’s clear from the other recent documents that the EU doesn’t want to offer visa facilitation to sub-Saharan African countries, hence the quite new idea of offering them admission of service providers instead. Interestingly, the market access aspects of service provision apply to all Member States (ie, including the UK), although the immigration law aspects (such as facilitated visas and permits just for this category of persons) arguably fall within the scope of immigration law, where the UK opt-out applies. The Commission’s migration agenda had referred to plans to propose rules on this issue, but it had not linked them to readmission.

As for development policy cash, this also applies to all Member States, unless some external money in the home affairs budgets can be used. This phrase could also refer to national development policy budgets. The important question is whether this is new money, or will be diverted from building schools or hospitals, or aiding human rights defenders.  

d) Member States will fully implement the Return Directive, making full use of all measures it provides to ensure the swift return of irregular migrants; return decisions issued by the Member States will be introduced in the Schengen Information System;

Fully implementing an existing law sounds uncontentious, but in fact the Commission paper referred to above urges Member States to lock up irregular migrants for as long as possible and to use derogations in that Directive, which could justify limiting judicial review, and holding irregular migrants (including families) in prisons, mixed in with the general prison population of convicted criminals. Further comments on this here.

Some or all entry bans are already introduced in the Schengen Information System (SIS), and the Commission plans to propose a legal obligation that all of them will be. But introducing all return decisionsin the SIS is quite new, since not all return decisions result in entry bans. In fact, this is the first new category of data to be added to the SIS since it was established. It will take some time and money (as well as new EU legislation) to set this up.

Note that the UK will not have access to this data, since it does not participate in the immigration-related aspects of the Schengen system. It does have access to the separate Eurodac database, of people who applied for asylum or crossed the borders irregularly in another Member State, although it can only access this is those people then apply for asylum in the UK.

e) the Commission will set out by July 2015 how Frontex will bring immediate support to frontline States on return. The Commission has announced its intention to propose to amend the Frontex Regulation to strengthen the role of Frontex, notably so that it can initiate return missions;

The Commission paper also wants to give Frontex a role in going to third countries and arranging return flights, and in expelling people from a single Member State. The last set of amendments to the Frontex Regulation in 2011 allow Frontex to have its own assets. Perhaps ‘Air Frontex’ – the one airline you never want to travel on – is coming?

f) in order to accelerate the treatment of asylum applications, the Commission will set out by July 2015 measures to be taken to use EASO to coordinate the implementation of the "safe country of origin" provisions in the Asylum Procedures Directive. The Commission has indicated its intention to strengthen the "safe country of origin" provisions in the Asylum Procedures Directive, including the possible establishment of a common EU list of safe countries of origin;

It’s not clear what EASO will be doing here. It can’t decide on asylum applications, but only give guidance. As for the legislative proposal, the Council tried to agree on a common list of safe countries of origin in 2005, but failed epically. It’s not so problematic to include countries where the failure rate is 99%, but becomes difficult to include countries where even 10% or 20% of applications are successful – since that is a lot of people whose claims won’t be adequately assessed.

g) adequate means will rapidly be made available in support of an effective EU return policy; furthermore, the Commission is invited to make proposals in this respect in the context of the 2016 EU budget, and to set up a dedicated European Return Programme.

This suggests more cash will soon be available for removals. It looks as if the ‘European Return programme’ is simply going to be an official name for this pot of cash, to give it greater visibility.

Final comments

Some analysis of the summit suggests that it was a failure on immigration issues, because Member States wouldn’t agree to binding quotas on relocation of refugees. This isn’t necessarily the case. The summit conclusions still refer to adopting a binding measure requiring the relocation of 40,000 people. If Member States do end up relocating 40,000 refugees, there’s not much point quibbling about exactly how they did it. However, the replacement of quotas by voluntary offers makes it less likely that this number will be achieved, and in that case the Council might decide not to adopt the Decision after all.  

Having said that, even if the number of people relocated ends up at 20,000 or 30,000, instead of 40,000, that will contribute to reducing the pressure on Greece and Italy. It will be significantly more than the piddling number of people relocated in the past. The very existence of this commitment is an implicit admission that the Dublin system is a failure. And the commitment to resettle 20,000 people is a bigger contribution than the EU has made before in that context too.

All this is counterbalanced by the decisions on return and readmission. It seems that there is a quid-pro-quo between a more generous policy on asylum and a more restrictive policy on irregular migration. Certainly this part of the conclusions shows the importance of implementation of EU law by the Member States. The Commission has committed itself to encouraging Member States to apply the Directive as restrictively as possible, so it will fall to NGOs and migrants’ legal advisers to monitor what goes in practice, and challenge it if necessary.

‘The Commissioner suggested that we do it’ is not in any way a sufficient legal reason to lock up families together with convicted prisoners, while limiting judicial review. Rather, any Member State wanting to apply exceptions from detention standards in the Returns Directive has to show that 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 or on its administrative or judicial staff’, presumably separately (ie it’s possible that the facilities are overburdened but the judges aren’t, or vice versa). It must also end the derogation as soon as conditions have changed, and also inform the Commission. CJEU case law (Kamberaj) suggests, by analogy, that the decision to lower detention standards is invalid unless that latter procedural requirement is fulfilled.  There’s a good argument that derogation clause is itself invalid, as a breach of the Charter rights to family life, access to court and the rights of the child. At the very least it must be interpreted in light of those Charter rights, and the similar protections set out in Article 5 of that Directive.

Barnard & Peers: chapter 26

Photo: Zaatari refugee camp in Jordan, by US Department of State

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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

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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

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Judicial control of Detention: A deceptive upheaval?

Marie-Laure Basilien-Gainche

Professor in Law

University Jean Moulin Lyon III
Member of the Institut Universitaire de France

Last Thursday 5 June 2014, the third Chamber of the Court of Justice of the European Union (CJEU) published its decision in the Mahdi case (available in French and Bulgarian, but not yet in English) that offers one more time some clarification about the way the so-called Return Directive must be interpreted: it is the eighth time the Court of Luxembourg has shed some light on some provisions of this Directive (Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals).

In its famous previous cases, the Court of Luxembourg answered preliminary questions concerning the Directive. Although the Italian Tribunale di Rovigo asked the CJEU to interpret many different provisions of the Return Directive in the Sagorcase (CJEU, 6 December 2013, C-430/11), the referring national judges in the other cases asked questions on a specific provision of the Directive: Article 2 in the Arslan case (CJEU, 30 May 2013, C-534/11); Article 8 in the Achughbabiancase (CJEU, 6 December 2011, C-319/11); Article 12 in the Filev & Osmani case (CJEU, 19 September 2013, C-297/12); and Article 15 in the Kadzoevcase (CJEU, 10 November 2009, C-357/09 PPU), in the El Dridi case (CJEU, 28 April 2011, C-61/11 PPU), and in the G. & R. case (CJEU, 10 September 2013, C-383/13).

The  interpretation of the same provision was again at stake in last week’s Mahdijudgment: the Bulgarian judge (Administrativen sad Sofia-grad) asked numerous detailed questions to the CJEU concerning Article 15 of the Return Directive, particularly its paragraphs 3 and 6, in the light of Articles 6 and 47 of the Charter of Fundamental Rights of the European Union. It should be noted that the French judges that have recently decided to stay their proceedings and to refer to the Court of Justice for preliminary rulings on the Directive, might be inspired by the way such a Bulgarian court addressed its questions. Actually, the requests for a preliminary ruling the Tribunal de grande instance de Bayonne lodged on 15 April 2013 in the Raquel Gianni Da Silva v. Préfet des Pyrénées-Atlantiques case (C-189/13) and the Tribunal administratif de Pau lodged on 6 May 2013 in the Khaled Boudjlida v. Préfet des Pyrénées-Atlantiques case (C-249/13) appear to be rather vague and elusive, so much so we can wonder whether the Court will be able to give some unequivocal answers that would effectively push the French juridical order to be in conformity with the Return Directive provisions.

The Mahdicase concerns a Sudanese national, who was arrested in Bulgaria for not possessing a valid identity document, and against whom a return decision (see Article 8 of the Return Directive) and an entry ban (see Article 11 of the Return Directive) were issued. Being detained in the detention center of Busmansti in order to let the Bulgarian administration organize and proceed to his removal, Bashir Mohamed Ali Mahdi agreed initially to benefit from a voluntary departure (see Article 7 of the Return Directive), before refusing such a solution. Meanwhile, the Sudanese authorities refused to deliver M. Madhi the needed travel documents, so the director of the Busmantsi detention center (direktor na Direktsia «Migratsia» pri Ministerstvo na vatreshnite raboti) proposed that he be released (see Article 15 § 4 of the Return Directive) and subjected to a less coercive measure instead of detention (see Article 15 § 1 of the Return Directive).

Nevertheless, the national administrative hierarchy opposed the proposition of the detention center director. Thus Bashir Mohamed Ali Mahdi remained in the Busmansti center, during all the first period of detention that cannot last more than six months (see Article 15 § 5 of the Return Directive). At the expiration of such a period, the detention center director asked the administrative judge (Administrativen sad Sofia-grad) to extend the detention period (see Article 15 § 6 of the Return Directive), because of the lack of cooperation M. Mahdi showed and the difficulties the administration encountered in obtaining the necessary documentation from the Sudanese ones. As discussed below, these are the only grounds in the Directive for a possible extension of immigration detention of a third-country national (TCN) beyond six months.

The Bulgarian administrative judge did not answer to positively to the administration demand; instead he sent a request for a preliminary ruling to the CJEU as he wondered how paragraphs 3 and 6 of Article 15 of Directive 2008/115/EC had to be understood. The first of these provisions states: “In every case, detention shall be reviewed at reasonable intervals of time either on application by the third-country national concerned or ex officio. In the case of prolonged detention periods, reviews shall be subject to the supervision of a judicial authority”. The second provision states: “Member States may not extend the [six-month] period referred to in paragraph 5 except for a limited period not exceeding a further twelve months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to: (a) a lack of cooperation by the third-country national concerned, or (b) delays in obtaining the necessary documentation from third countries”.

Actually, all the questions the referring judge addressed to the Court concern the detention of the illegally staying third-country national whose removal is pending (see the view of Advocate General Szpunar Maciej). Four points are dealt by the CJEU. The first one concerns the formal and substantial requirements which the decision that extends the period of detention must fulfil: even though Article 15 § 21 of the Return Directive deals with the initial detention decision stating that “Detention shall be ordered in writing with reasons being given in fact and in law”, the Court of Justice asserts that such requirements also have to be satisfied by the later decisions that extend the detention of the illegally staying third-country national.

The Madhidecision also deals with three other points that must be emphasised: 1) the intensity of judicial control of the decision that extends the detention period; 2) the reasons why the TCN is detained and remains in detention; 3) the issuing of a residence authorization when there is no reasonable prospect of removal.

1 - The intensity of judicial control of the decision that extends the detention period

The extension of a detention measure and the nature of the control the judicial authority has to exercise on it have been the subject of previous preliminary rulings of the CJEU. In the Arslan case (CJEU, 30 May 2013, C-534/11), it has been asserted that such an examination must rely on “an assessment on a case-by-case basis of all the relevant circumstances” (§ 63). In the G. & R. case (CJUE, 10 September 2013, C-383/13), the CJEU stated that “where the extension of a detention measure has been decided in an administrative procedure in breach of the right to be heard, the national court responsible for assessing the lawfulness of that extension decision may order the lifting of the detention measure only if it considers, in the light of all of the factual and legal circumstances of each case, that the infringement at issue actually deprived the party relying thereon of the possibility of arguing his defence better, to the extent that the outcome of that administrative procedure could have been different” (§ 45).

These positions of the CJEU didn’t appear to provoke any juridical earthquakes: the interpretations emphasise first that the judicial control must be exercised taking into account all the factual and legal circumstances of the considered case (which sounds quite obvious), and second that such a control can lead to an annulment of the administrative decision that extends the detention for violating the right to be heard only if the respect of such a right would have led to a different result (which seems to restrain the significance of the procedural safeguards).

The decision the CJEU stated in the Madhi case however clearly enhances the scope of the control which the judicial authority has to exercise upon the administrative decision that lengthens the detention of illegally staying TCN against whom removal orders are issued (§ 62). First, the Court doesn’t only assert the judicial authority has to examine the request for an extension of detention with regard to all the factual and legal circumstances of each case; it also insists upon the need for the judicial authority to take into account “all” the circumstances, including even the circumstances which the administrative authority did not transmit or present.

Second, the Court states that the judicial authority can not only refuse the extension of the detention, but also can decide that the illegally staying TCN must instead be the subject of a less coercive measure. This point is particularly important because in Bulgaria (and in France too), the judge doesn’t exercise a full control over the detention extension measure.

However, the Court’s judgment is less constructive as regards to the appreciation of the reasons why an illegally staying TCN can be detained and remain in detention.

2 - The reasons why the TCN is detained and remains in detention

According to the CJEU in the Mahdi case, the fact that the person concerned does not have a valid identity document does not justify the lengthening of detention , and does not constitute by itself a ‘risk of absconding’, which is one of the grounds for detaining that person initially (§ 69). Nonetheless, the Court leaves the national judge free to take into account such an element to decide upon the extension of detention. This is disappointing because a ‘risk of absconding’ is one of the grounds to detain asylum-seekers under the ‘Dublin’ rules and the EU’s reception Directive, so though this might lead to a violation of the international and European rules which recognize and guarantee the right of asylum (compare Article 15 § 1 of the Return Directive to Article 28 of Regulation (EU) n°604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) and Article 8 of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast)). Moreover, in some countries (such as France) asylum-seekers are treated as irregular migrants (and so are subject to the Returns Directive as such) because of a long delay in recognizing an application for asylum.

It is with impatience and anxiety that we wait for the preliminary ruling the CJEU will give in the Z. Zh. case (C-554/13),  in which the Court will answer some questions sent by the Raad van State (Netherlands) lodged on 28 October 2013 about the way the ‘risk of absconding’ can be or must be defined.

The clarification which the CJEU gave in the Sagor case (CJEU, 6 December 2013, C-430/11) that the risk of absconding must be assessed on the basis of “an individual examination” of the TCN’s case (§ 41) is indeed really insufficient to frame the practices the Member States which have developed to widen the notion excessively: for instance, the French law – Article 39 of the Loi n° 2011-672 relative à l’immigration, à l’intégration et à la nationalité – claims that there is a risk of absconding that justifies detention and the refusal of a period of voluntary departure as in nine different situations, six of which do not seem in conformity with the EU law.

If the risk of absconding can justify the initial detention of an illegally staying TCN, his/her lack of cooperation (as we have seen above) can justify the decision to detain him orher for more than six months. The Madhi case offered the CJEU the opportunity to clarify the meaning of the phrase “a lack of cooperation by the third-country national concerned” (Article 15 § 6 of Directive 2008/115/EC) in this context. The situation of Bashir Mohamed Ali Mahdi is quite clear: he did not hold any valid identity document when he was arrested and he did obtain such a document from his national state authorities afterwards. Can such a situation be considered as a lack of cooperation by Mr. Mahdi?

The answer of the Court could have been more neat and clear. Indeed, the CJEU avoids the problem, asserting that it is not competent to examine the facts of the case, and that only the national judge can answer such a question, as far as it is a question of fact. However, the Court does develop one interesting point which must be emphasised: “a lack of cooperation by the third-country national concerned” can result only from the behavior of the TCN, insofar that the delays and difficulties his/her national state demonstrates in delivering the documentation necessary for his/her removal cannot be blamed upon him or her (§ 85).

3 - The issuing of a residence authorization when there is no reasonable prospect of removal

Do national authorities have to issue of a residence authorization to the illegally staying TCN when there is no reasonable prospect for his/her removal? On this point, the CJEU’s position is even more deceptive. The Court concedes the possibility for the Member States to refuse a legal residence to unremovable TCNs, therefore maintaining them in a precarious irregular legal status (we can think here of the French law that makes a quite cryptic distinction between the “droit au séjour” (right to reside) and the “maintien sur le territoire” (right to stay on national territory)).

Admittedly, the return Directive deals with the removal measures issued against illegally staying TCNs, not with the residence card offered to such TCNs if they cannot be removed. But somehow, the CJEU does not confirm the position the Commission has asserted since the negotiations of the Return Directive began: that EU law offers a simple alternative between proceeding to the removal of the irregular migrants or giving them a residence authorization. The question must be asked how much the CJEU’s position can affect the effectiveness of the return Directive, since it means that large numbers of persons will remain on national territories who cannot be removed, but who do not have a fully-fledged right to reside. Similarly the Court’s insistence that national courts have extensive control over detention decisions is undercut by its willingness to give them a great deal of leeway to decide whether someone ought to be initially detained, and whether that detention can be renewed.

Barnard & Peers: chapter 26

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