• #Migration

The increasing and controversial use of detention of asylum seekers and irregular migrants in the EU

01.07.2019
Enrico Gallerani
Social Operator - Non profit
Alberto Zinanni
Paralegal - ARCI Pistoia
ELENI KOUKOUROUZI
Community Support Worker - International organisation for migration
+365
EXPERTS

Asylum-seekers and irregular migrants are facing increased detention across the European Union. It has been used to enforce return decisions, carry out Dublin transfers or as part of reception procedures for individual seeking international protection. It is therefore envisaged for several categories of individuals with diverse background, status and conditions of vulnerability. The upcoming Discussion Brief emphasises that:

- We need a better understanding of the existing EU legislative framework regarding immigration detention, the proposals put forward to recast the CEAS and the stakeholders’ perspectives and concerns;

- It is necessary to have an overview of current national practices which may violate the fundamental rights of migrants and EU law;

- A comprehensive assessment is needed on adverse consequences of migration detention, from the point of view of migrants’ health, vulnerability, psychological wellbeing and social sphere, as well as a consideration of the resort to less coercive alternative measures.

 

Key issues and controversies further highlighted in our earlier Discussion Brief include:

- The existing and possible new grounds for detention;

- The interpretation and implementation of the “risk of absconding”, along with the proposed 16 objective criteria to determine it (see ECRE’s comments on the 16 criteria);

- The length of detention;

- The possible limitation of the suspensive effect of legal remedies;

- The resort to alternative measures as a gateway to detention;

- The current lack of ban on child detention;

- The adverse impacts on health, psychological wellbeing and social relations of migrants.

 

This online consultation aims to discuss with national stakeholders, practitioners, policy actors and researchers the following three topics:

 

Topic 1: Needs for assessment of the use of detention

- Are there measures or systems put in place at the national level to monitor the situation of migrant detention?

- How can we better assess the use of detention across the EU considering the current legislative framework and the new proposals such as Return Directive Recast and Reception Condition Directive Recast? Please also fill out a quick scoring survey on different options.

- Which instruments are needed for regular access to data on migrant detention at the national level? Are national statistics on detention useful instruments in this respect?

 

Topic 2: Policy actions to ensure that needs are addressed.

- Are there alternative measures to detention provided at national level for migrants?

- Which are the most important measures that should receive more EU support?

- How do you assess whether the practice of migrant detention used at the national level is in line with EU legislation?

 

Topic 3: The role of the EU and other actors

- Do different stakeholders (governmental and non-governmental) have the right to monitor and assess the conditions inside migrant detention facilities?

- Which actors (the EU national or local actors) could help establishing compulsory mechanisms to provide data on immigrant detention, monitor migrants’ conditions in the detention facilities and sanction non-compliant practices?

- What role could the EU play in fostering good practices and increase the resort to alternative measures?

 

We invite you all to share your views, experiences and examples on the use of and alternatives to detention in your country of work/residence.

 

To join the discussion, please first log in to the platform in the top right corner. 

 

When you leave a message, please note in the subject line the topic you are responding to in order to ensure a more interactive dialogue between commentators. Ex: “Topic 3: school boards play more important role than…”

 

Please scroll down to read and reply to previous comments!

Melanie Zonderman
Platform Kinderen op de vlucht/ Plate-forme Mineurs en exil
10.07.2019 11:02

Topic 2 - Are there alternative measures to detention provided at national level for migrants?

Belgian legislation foresees the following three alternatives to detention:
1. The return houses, also called FITT-houses or open family units; implemented in October 2008, embedded in article 74/8 §1 of the Alien Act, regulated in the Royal Order of 14 May 2009.

Currently, the following 6 categories of families with children can be accommodated in the return houses:
● Families who stay on the territory without a legal stay;
● Families on the territory who received a negative response on their demand for international protection;
● Families who introduce a demand for international protection at the border;
● Families at the border who did not introduce a demand for international protection;
● Families concerned by the Dublin procedure (both on the territory and at the border);
● Families without a legal stay who enjoy shelter on the basis of the Royal Order of 24 June 2008 – in this case, it’s not a matter of detention!

2. The possibility to stay in the family house pending a voluntary return; Transposition of article 7 of the European Return Directive, based on article 74/9 of the Alien Act; the Royal Order of 17 September 2017 determines the content of the agreement between the family and the Foreigner’s Office.

3. The “preventive measures to prevent disappearances”; Transposition of the EU Return Directive, based on article 74/14§2 of the Alien Act, and stipulated in article 110 quaterdecies of the Royal Order of 8 October 1981 on the entry, stay, settlement and removal of foreign nationals.
The law foresees the following measures, both for families with children and adults, “for as long as the term for voluntary departure has not expired”:

● obligation to regularly report to the commune or the Foreigner’s Office;
● to pay a deposit;
● to hand over copies of identity documents.

It's important to point out that the possibilities to stay in your own home in anticipation of the voluntary return (point 2.) as well as the preventive measures to prevent disappearances (point 3.), currently do not meet all conditions of the restricted definition of "alternatives to detention" (no "warrant to detention" is issued, and these measures can be imposed while it is not yet proven that the return is possible or imminent). Nevertheless, the IDC views alternatives to detention as “any law, policy or practice by which persons are not detained for reasons related to their migration status.” Unfortunately, these alternatives, although foreseen by law, are barely applied and do not receive sufficient funding. However, in our opinion they can be an opportunity for both the beneficiaries and the government and should be developed into fully-fledged alternatives.

Melanie Zonderman
Platform Kinderen op de vlucht/ Plate-forme Mineurs en exil
10.07.2019 10:54

Topic 3: Do different stakeholders have the right to monitor and assess the conditions inside migrant detention facilities?

Belgium has not yet appointed an independent authority to perform regular monitoring and reporting on the
running of its immigration detention centres. It is important to note that the Belgian authorities have signed the
OPCAT, but still haven’t ratified it. The Royal Decree of 2nd August 2002 sets the operating rules for the detention centres managed by the
Immigration Office on the Belgian territory, where foreigners can be detained, placed under government control
or held, according to article 74/8 §1 Alien Act. Art. 42 of this Decree states that parliamentarians always have
access to the detention centres in the exercise of their duties.
In its article 44, this Decree also provides that UNHCR, the European Committee for Human Rights, the
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT),
the Federal Migration Centre (Myria), asylum authorities, both regional children’s rights officers
( Kinderrechtencommissaris and Délégué Général aux Droits de l’enfant ), the Belgian federal Ombudsman and
the UN Committee against Torture have access. However, as these international and national institutions have
many missions in addition to monitoring the detention centres in Belgium, they don’t visit the centres regularly.
There are several NGOs that visit the centres on a weekly basis, after they received oficial accreditations for
visiting the detention centres and/or return houses. Their first aim is to provide moral and psychological support
to detainees and to assure social and legal aid. In addition, they also monitor the conditions of detention and
issue recommendations to the authorities in charge. It is important to note that the actions of these NGOs are not
officially recognised as “monitoring” by the Belgian authorities.
A complaint procedure is foreseen by these Royal Orders, however, Vluchtelingenwerk Vlaanderen found that
this procedure has serious shortcomings.

Melanie Zonderman
Platform Kinderen op de vlucht/ Plate-forme Mineurs en exil
10.07.2019 10:52

Topic 1: Are there measures or systems put in place at the national level to monitor the situation of migrant detention?

Belgium has not yet appointed an independent authority to perform regular monitoring and reporting on the
running of its immigration detention centres. It is important to note that the Belgian authorities have signed the
OPCAT, but still haven’t ratified it. The Royal Decree of 2nd August 2002 sets the operating rules for the detention centres managed by the
Immigration Office on the Belgian territory, where foreigners can be detained, placed under government control
or held, according to article 74/8 §1 Alien Act. Art. 42 of this Decree states that parliamentarians always have
access to the detention centres in the exercise of their duties.
In its article 44, this Decree also provides that UNHCR, the European Committee for Human Rights, the
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT),
the Federal Migration Centre (Myria), asylum authorities, both regional children’s rights officers
( Kinderrechtencommissaris and Délégué Général aux Droits de l’enfant ), the Belgian federal Ombudsman and
the UN Committee against Torture have access. However, as these international and national institutions have
many missions in addition to monitoring the detention centres in Belgium, they don’t visit the centres regularly.
There are several NGOs that visit the centres on a weekly basis, after they received oficial accreditations for
visiting the detention centres and/or return houses. Their first aim is to provide moral and psychological support
to detainees and to assure social and legal aid. In addition, they also monitor the conditions of detention and
issue recommendations to the authorities in charge. It is important to note that the actions of these NGOs are not
officially recognised as “monitoring” by the Belgian authorities.
A complaint procedure is foreseen by these Royal Orders, however, Vluchtelingenwerk Vlaanderen found that
this procedure has serious shortcomings.

Marta Gionco
PICUM
09.07.2019 17:24

Topic 2 - Alternative measures to detention

Under the EU Directive on Returns, States have an obligation to assess the effectiveness of less coercive measures before applying detention. In the revised Return Handbook, the European Commission lists a series of possible alternatives to detention that can be applied in the pre-return context, such as "residence restrictions, open houses for families, caseworker support, regular reporting, surrender of ID/travel documents, bail and electronic monitoring". The decision on which measure to applied must be based on a genuine assessment of each individual case. While the Commission does not provide further guidance on how to decide which measure to apply, it suggests Member States “to find intelligent solutions with an appropriate mix of rewards and deterrents” (p. 68). This provision is particularly concerning as it endorses the use of enforcement and deterrence as major tools in migration management. As highlighted in ReSOMA Discussion Brief on this topic, the reliance of alternatives to detention drawn from the criminal framework risk to “produce stigmatising effects on migrants, psychological distress and social exclusion”. On the opposite, NGO-run pilot projects have demonstrated that, in order to be effective, alternatives to detention must be based on migrants’ engagement in the migration process. As an example, in three pilot projects in Bulgaria, Cyprus and Poland, 97 % of the participants remained engaged or achieved case resolution. In these cases, the provision of holistic and individualised case management was key to the success of the programme. Case managers, who are not responsible for making decision on people’s immigration cases, link the individual, the authorities and the community. They help clients to work towards case resolution and ensure that their fundamental rights and basic needs are met.

In order to support similar projects, the Commission's political and financial support is pivotal. For instance, the future AMF should include strong wording on engagement-based alternatives to detention, and encourage NGOs' involvement in the designing and implementation of the project.