Dr Andrea Romano, Research assistant, “Sapienza” University of Rome

Introduction

The recent Celaj judgment and its debatable connection to past rulings of the Court of Justice concerning the Returns Directive has been the subject of much discussion. This analysis will provide a concise comparison between this judgment and the Vélez Loor case, which was decided by the Inter-American Court of Human Rights (IACtHR) in 2010.

The Court of Justice of the European Union’s judgment in the Celaj case stemmed from various preliminary rulings brought forth by Italian judicial bodies regarding the Returns Directive. From an Italian immigration law perspective, it’s important to note that, through preliminary rulings, the Court of Justice has consistently deemed severe restrictions of personal liberty as incompatible with the Returns Directive. While this legal precedent was based on the principle of effectiveness rather than human rights, it did, in effect, bolster the fundamental rights of undocumented immigrants (El Dridi, Sagor). However, the Court did not apply the same level of scrutiny in the Celaj case simply because it involved incarceration for violating an entry ban, unlike previous cases that dealt with sentences for illegal residence. It is crucial to remember that the criminal penalty in question in the El Dridi judgment (one to four years imprisonment) was – prior to the 2011 reform implemented to align with the El Dridi ruling – identical to the penalty for breaching an entry ban, a violation that the Celaj judgment has now declared as consistent with the Returns Directive.

Despite this, the Celaj judgment offers an opportunity to examine alternative reasoning and principles, allowing for a critical look at the detention of migrants and the deprivation of their liberty. The ECtHR has traditionally maintained a rather lenient stance regarding national detention measures for undocumented migrants. It has asserted in multiple judgments that it will not subject situations covered by Article 5(1)(f) of the Convention, which pertains to the detention of irregular migrants (Saadi v. the United Kingdom), to the non-arbitrary test (including proportionality and necessity scrutiny). Consequently, this case law doesn’t significantly impact the Celaj ruling, partly because it concerns administrative detention rather than criminal imprisonment.

Looking beyond Europe, the Vélez Loor case adjudicated by the Inter-American Court of Human Rights presents compelling arguments for a human rights-based approach when imprisoning immigrants due to immigration law violations.

The multifaceted scrutiny of the deprivation of liberty in the Vélez Loor case

This case involved an Ecuadorian citizen apprehended by Panamanian police for lacking a residency permit and subsequently detained for several months. Specifically, he received a two-year prison sentence, as per the law at the time, for violating a previous deportation order and associated entry ban imposed by Panama (cf. art. 67 and art. 37 of the Law Decree no. 16 of 1960; the Law Decree no. 3 of 2008 abolished imprisonment for this offense). Therefore, similar to the Celaj judgment, the aim was to penalize the migrant’s repeated offense.

The Vélez Loor judgment is highly pertinent to the European context of irregular immigration due to both its outcome and rationale. The Inter-American Court’s emphasis on the vulnerability of undocumented immigrants is particularly noteworthy. While this concept is familiar to the European Court of Human Rights, the Inter-American Court’s reasoning encompasses a broader scope: unlike the ECtHR, which addressed vulnerability in specific instances, the IACtHR’s argument extends to all irregular migrants.

Citing a report by the Special Rapporteur of the Economic and Social Council, the Court points out that undocumented migrants are “the most susceptible to potential or actual human rights violations, and their situation leaves them with even less protection of their rights” (par. 98). The Court specifically addressed the cultural biases against irregular migrants that create an association between undocumented status and criminality, as well as the likelihood of impunity when their rights are violated. The negative consequences of irregular immigration highlighted by the Inter-American Court could be seriously considered by European and national lawmakers for at least two reasons: First, the Court’s observations on the tendency to equate irregular migrants with criminals and the resulting stigma underscore the importance of minimizing differential criminal treatment. Second, it could serve as a strong argument for reducing irregular immigration through individual regularization initiatives undertaken by Member States or even within the EU framework.

In light of this, the Court examined the multiple human rights violations experienced by Mr. Vélez Loor (including lack of due process, torture, arbitrary detention). Focusing on his imprisonment resulting from the prior deportation order and entry ban, the Court conducted a comprehensive review, ultimately declaring it incompatible with Article 7(3) of the Convention (which states that “no one shall be subjected to arbitrary arrest or imprisonment”). Firstly, the court scrutinized the objective of the detention and its appropriateness. It clearly stated that “inflicting a punitive measure upon an immigrant who re-enters a country illegally after being issued a deportation order cannot be considered a legitimate objective under the Convention” (par. 169). In essence, the Court posits that detention aimed at managing migration flows is not inherently incompatible with the Convention. It becomes incongruous only when the punitive objective overshadows the migration control rationale: This occurs when “criminalizing illegal entry into a country surpasses the legitimate interest of States to control and regulate illegal immigration and results in unnecessary detention” (par. 169).

Moreover, the Court employed a necessity and proportionality assessment. This is particularly relevant within the European framework, given the ECtHR’s historical reluctance to apply such scrutiny to cases involving immigration detention. The IACtHR determined that the migrant’s detention was both unnecessary and disproportionate, emphasizing that “it is crucial for States to develop a variety of alternative measures” (par. 171). Again, this doesn’t imply a blanket ban on immigrant detention but rather discourages “automatic” detentions and advocates for a thorough, individualized evaluation of each case, resorting to detention only as a last resort.

Implications for Celaj

Consistent with the Court of Justice’s jurisprudence, imprisoning an irregular migrant for violating immigration laws undermines the principle of effectiveness, creating an obstacle to returning migrants. While this has prompted several Member States to amend their laws – as their standard of protection for migrant rights fell short of the Returns Directive – many critics argue that this functional approach by the Court neglects fundamental rights and reinforces the Directive’s restrictive nature. Conversely, the IACtHR presents a contrasting perspective, advocating against preemptive immigration detention based firmly on a human rights rationale. It achieves this through a comprehensive consideration of the purpose and limitations of detention.

It’s worth noting that under Italian law, imprisoning immigrants for violating an entry ban doesn’t directly serve a migration control objective, as it’s not intended for expulsion. Instead, the rationale for detention in such cases falls under the broader aims of criminal sanctions, like deterrence or rehabilitation. Therefore, the IACtHR’s assertion that punishing an immigrant through detention infringes upon their human right to personal liberty prompts a reevaluation of the scope and significance of such detention within the Italian context. It suggests moving away from prison sentences for immigration law violations.

Furthermore, it is important to remember that an entry ban violation in Italy can lead to lengthy imprisonment, potentially lasting between one to four years. The Inter-American Court’s scrutiny of necessity and proportionality is particularly insightful for assessing the suitability of such extended deprivation of liberty.

Conclusion

Given these points, the Inter-American Court’s judgment warrants careful consideration to explore alternative approaches to the widespread practice of criminal sanctions leading to migrant detention in Europe.

Advocating for a direct transfer of this judgment into Luxembourg’s jurisprudence would be unrealistic, given the significant differences between the Court of Justice and the IACtHR. However, the scope and relevance of the Inter-American Court’s scrutiny cannot be disregarded, especially considering the ongoing challenges posed by the “crimmigration” phenomenon in Europe. This is evident in the pervasive assumption equating migrants with criminals, the detrimental effects on the justice system, and the risk of “chain” detentions, where migrants face administrative detention after serving a prison sentence, and vice versa.

The IACtHR puts forth a series of impactful observations, criticizing the punitive nature of prison sentences, applying a necessity and proportionality test to immigration detention, and stressing the need for States to explore alternative measures. These observations can be viewed as valuable tools for enhancing the protection of the human rights of undocumented immigrants at both national and European levels.

Barnard & Peers: chapter 26

Photo: The Inter-American Court of Human Rights in Costa Rica

Photo credit: www.un.org