trends in detention of illegal migrants in european union by juris gromovs kiev, 7 february 2005

Trends in detention of illegal migrants in European Union

By Juris GromovsBy Juris Gromovs

Kiev, 7 February 2005Kiev, 7 February 2005

Sources of law on detentionSources of law on detention

International treatiesInternational treaties

European Union lawEuropean Union law

Soft law and best practicesSoft law and best practices

National law and practices of the National law and practices of the competent authorities and courtscompetent authorities and courts

International treaties (1)International treaties (1)

European Convention for the Protection of Human Rights and European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) signed on 4 November 1950 and Fundamental Freedoms (ECHR) signed on 4 November 1950 and entered into force 3 September 1953.entered into force 3 September 1953.

1951 Convention relating to the Status of Refugees adopted on 1951 Convention relating to the Status of Refugees adopted on 28 July 1951 and entered into force on 21 April 195428 July 1951 and entered into force on 21 April 1954 as as supplemented bysupplemented by

the New York Protocol of 31 January 1967the New York Protocol of 31 January 1967

International Covenant on Civil and Political Rights (ICCPR) International Covenant on Civil and Political Rights (ICCPR) adopted by the UN General assembly Resolution 2200A (XXI) of adopted by the UN General assembly Resolution 2200A (XXI) of 16 December 1966; entered into force 23 March 1976.16 December 1966; entered into force 23 March 1976.

UN Convention against Torture and other Cruel, Inhuman or UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) adopted by the UN Degrading Treatment or Punishment (CAT) adopted by the UN General Assembly resolution 39/46 on 10 December 1984; General Assembly resolution 39/46 on 10 December 1984; entered into force on 26 June 1987.entered into force on 26 June 1987.


UN Convention on the Rights of the Child (CRC) adopted UN Convention on the Rights of the Child (CRC) adopted by UN General Assembly resolution 44/25 on 20 by UN General Assembly resolution 44/25 on 20 November 1989; entered into force on 2 September November 1989; entered into force on 2 September 1990.1990.The European Convention for the Prevention of Torture The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and Inhuman or Degrading Treatment or Punishment adopted by the Committee of Ministers on 26 June 1987adopted by the Committee of Ministers on 26 June 1987

UN International Convention on the Protection of the UN International Convention on the Protection of the Rights of all Migrant Workers and Members of their Rights of all Migrant Workers and Members of their Families adopted by UN General Assembly resolution Families adopted by UN General Assembly resolution 45/158 of 18 December 1990 45/158 of 18 December 1990


In the future - Treaty establishing a In the future - Treaty establishing a Constitution for Europe? (by granting Constitution for Europe? (by granting legally binding force to the European legally binding force to the European Charter of Fundamental Rights )Charter of Fundamental Rights )

Soft Law(1)Soft Law(1)

Universal Declaration of Human Rights (UDHR) Universal Declaration of Human Rights (UDHR) of 10 of 10 December 1948.December 1948.UNHCR’s EXCOM Conclusion No. 44 (XXXVII) UNHCR’s EXCOM Conclusion No. 44 (XXXVII) Detention of Refugees and Asylum seekersDetention of Refugees and Asylum seekersThe Standard Minimum Rules for the Treatment of The Standard Minimum Rules for the Treatment of Prisoners (SMR) Prisoners (SMR) adopted by the first UN Congress on adopted by the first UN Congress on the Prevention of Crime and Treatment of Offenders in the Prevention of Crime and Treatment of Offenders in 1955.1955.The Body of Principles for the Protection of All The Body of Principles for the Protection of All Persons under Any Form of Detention or Persons under Any Form of Detention or Imprisonment (BOP) Imprisonment (BOP) adopted by the UN General adopted by the UN General Assembly resolution 43/173 of 9 December 1988.Assembly resolution 43/173 of 9 December 1988.


The United Nations Rules for the Protection The United Nations Rules for the Protection of Juveniles Deprived of their Liberty (JDL) of Juveniles Deprived of their Liberty (JDL) adopted by the UN General assembly resolution adopted by the UN General assembly resolution 45/113 of 14 December 1990.45/113 of 14 December 1990.The United Nations Standards Minimum The United Nations Standards Minimum Rules for the Administration of Juvenile Rules for the Administration of Juvenile Justice (the “Beijing Rules”) Justice (the “Beijing Rules”) adopted by the adopted by the UN General Assembly resolution 40/33 of 29 UN General Assembly resolution 40/33 of 29 November 1985.November 1985. UNHCR Revised Guidelines on Applicable UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Criteria and Standards Relating to the Detention of Asylum Seekers (February 1999) Detention of Asylum Seekers (February 1999)


European Charter of Fundamental European Charter of Fundamental Rights (till the moment of the entry into Rights (till the moment of the entry into force of the Treaty establishing a force of the Treaty establishing a Constitution for Europe)Constitution for Europe)

Detention in the context of Detention in the context of development of EC/EU immigration development of EC/EU immigration

policypolicy

Non-harmonized liberal migration policy in Non-harmonized liberal migration policy in 1960s and 1970s 1960s and 1970s

More restricted semi-harmonized policy in More restricted semi-harmonized policy in 1980s and 1970s1980s and 1970s

Since 1999 – beginning of the era of Since 1999 – beginning of the era of harmonized EU immigration policyharmonized EU immigration policy

Regulation of the detention in the Regulation of the detention in the secondary legal acts of the secondary legal acts of the

European Union or their draftsEuropean Union or their drafts

A variety of definitions:

“detention” shall mean confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement

Article 2(k) of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for thereception of asylum-seekers

Regulation of the detention in the Regulation of the detention in the secondary legal acts of the secondary legal acts of the

European UnionEuropean Union

“Detention” means the confinement of an applicant for asylum by a Member State within a restricted area, where his freedom of movement is substantially curtailed

Article 2(j) of the Amended proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status, COM(2002) 326 final/2, Brussels, 03.07.2002

Future regulation of the detention in Future regulation of the detention in the secondary legal acts of the the secondary legal acts of the

European UnionEuropean Union

Minimum standards for detention orders could be set at the EU level defining the competence of responsible authorities and the preconditions for detention. They could cover the identification of the groups of persons who should generally not or only under specific conditions be detained. In any case, the detention order should be issued or confirmed without delay within statutory limits by a judicial authority;

Future regulation of the detention in the Future regulation of the detention in the secondary legal acts of the European Unionsecondary legal acts of the European Union

minimum rules on the conditions of detention, in particular on accommodation standards, could be envisaged in order to ensure a humane treatment in all detention facilities in the Member States. In any case, it should be ensured, if specific detention facilities are not available or capacities are exhausted, that returnees, who are detained in ordinary prisons, might be separated from convicts in order to avoid any criminalisation. The possible time limits for detention pending removal differ widely among EU Member States


Question to be answered while developing detention Question to be answered while developing detention standards:standards:Should binding standards on detention be established Should binding standards on detention be established and which alternatives to detention should be and which alternatives to detention should be considered?considered?Which binding standards in terms of legal preconditions Which binding standards in terms of legal preconditions and enforcement relating to detention pending removal and enforcement relating to detention pending removal should be set at Community level? should be set at Community level? Which groups should not or only under exceptional Which groups should not or only under exceptional circumstances be detained?circumstances be detained?Which accommodation standards should apply to Which accommodation standards should apply to detained returnees?detained returnees?Which time limits should be set to limit the maximum Which time limits should be set to limit the maximum duration of detention?duration of detention?P.31.1 of the EC Commision’s Green Paper on a Community return policy on illegal residents (COM (2002 175 final)


Detention pending removal is an act of enforcement, deprivation of personal liberty for returnenforcement purposes within a closed facilitya fair balance should be struck between the MemberStates’ need for efficient procedures and safeguarding the basic human rights of theillegal residentsthe minimum standards on detention pending removal should be set at EU level, defining competencies of responsible authorities and the preconditions for detention in the framework of a future Directive on minimum standards for return procedures

Communication of the EU Commission to the Council and the European Parliament on a community return policy on illegal residents


These standards could cover · Grounds for detention pending removal;· Identification of the groups of persons who should

generally not or only under specific conditions be detained;

· Rules concerning the issue of a detention order:· Provisions on the judicial control;· Time limits for the duration of detention pending

removal;· Rules on the conditions of detention, in particular on

accommodation standards, legal assistance, to ensure humane treatment in all detention facilities in the Member States.

Costs of the detention Costs of the detention procedures(1)procedures(1)

““But it costs GBP 2,700 a week to hold But it costs GBP 2,700 a week to hold each [person] at Oakingham, as much as each [person] at Oakingham, as much as the Ritz”. the Ritz”.

G.Kerevan, ”Collapse of Immigration Policy”, The Scotsman, September 4, 2001G.Kerevan, ”Collapse of Immigration Policy”, The Scotsman, September 4, 2001

Detention of an asylum-seeker costs far Detention of an asylum-seeker costs far more than sending a child to Britain's most more than sending a child to Britain's most expensive private school.expensive private school.

A.A. Dummett, „Immigration Control in Europe - The Long-term Consequences of Dummett, „Immigration Control in Europe - The Long-term Consequences of Short Sighted Legislation on Immigration”Short Sighted Legislation on Immigration”

Costs of the detention Costs of the detention procedures(2)procedures(2)

Costs of the detention vary greatly Costs of the detention vary greatly

country per countrycountry per country

Place of detentionPlace of detention

Notions of “detention centre”, Notions of “detention centre”, “accomodation centre” and “reception “accomodation centre” and “reception centre”, as well as airport transit zones are centre”, as well as airport transit zones are being used in the political and legal being used in the political and legal documents of EUdocuments of EUNational definitons and practical importance of the centres in the national legislation of EU Member States varies country per country

Categories of the detaineesCategories of the detainees

Differ depending on the national legislation but several Differ depending on the national legislation but several categories could be identified:categories could be identified:persons identified in the territory of a Member State;persons identified in the territory of a Member State;persons refused entry to the Member State concerned;persons who have entered the country illegally and have subsequently been identified by the authorities;persons whose authorisation to stay in the country has

expired and they have not left the country voluntary ;asylum seekers whose detention is considered necessary by the authorities, e.g. asylum seekers asylum seekers waiting for the decision to be made in the Dublin II waiting for the decision to be made in the Dublin II regulation procedure etc.;regulation procedure etc.;rejected asylum seekers waiting for their expulsion.rejected asylum seekers waiting for their expulsion.

Duration of detentionDuration of detention

No unified EU standardsNo unified EU standards

Depends on the national legislation:Depends on the national legislation:

E.g. in France -up to 32 days, in Italy – 60 E.g. in France -up to 32 days, in Italy – 60 days, in Germany - up to 6 months (could days, in Germany - up to 6 months (could be prolonged), in Belgium – 2 months be prolonged), in Belgium – 2 months (could be prolonged up to 5 months)etc.(could be prolonged up to 5 months)etc.

ConclusionsConclusions

So far the development of the common EU detention So far the development of the common EU detention standards for asylum seekers could be considered standards for asylum seekers could be considered more or less completed, although the relevant EU more or less completed, although the relevant EU Directives have not yet been transposed in the Directives have not yet been transposed in the legislation of EU Member Stateslegislation of EU Member StatesThe EU detention policy for illegal migrants is being The EU detention policy for illegal migrants is being developed but an agreement on a number of the developed but an agreement on a number of the above-mentioned issues (definitions, costs of above-mentioned issues (definitions, costs of procedures, reception standards, scope of the procedures, reception standards, scope of the guarantees for illegal migrants etc.) needs to be guarantees for illegal migrants etc.) needs to be reached in order to develop the common legal reached in order to develop the common legal standardsstandards

ANY QUESTIONS?ANY QUESTIONS?

Thank you for your attention!Thank you for your attention!

trends in detention of illegal migrants in european union by juris gromovs kiev, 7 february 2005

Documents