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) published a Focused Study entitled “The use of detention and alternatives to detention in the context of immigration policies.” The study is a synthesis report drawn from national reports from 26 countries, compiled by the EMN National Contact Points (NCPs). The report includes information from 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 study aimed 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.” EU law identifies two primary forms of immigration detention: pre-removal detention, regulated by the Returns Directive (2008/115/EC), and asylum detention, primarily governed by the Reception Conditions Directive (2003/9/EC) and its recently adopted recast (2013/33/EU). This blog post provides a brief discussion of the study by examining its stated objectives (p. 8), which are 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

One of the report’s most significant strengths is its statistical data. The figures on the number of detained migrants are especially important because the EU statistical office (Eurostat) does not track them, unlike other data such as the number of non-citizens apprehended or deported.

With the exception of three countries (Cyprus, Greece, and Portugal), the report provides a total number of immigration detainees in 2013: 92,575. This figure is revealing. However, to completely understand the scope of European immigration detention, it would be necessary to have the figures for all state parties to the relevant EU instruments over a period of several years.

France (including French overseas territories) detained the highest number of non-citizens in 2013 (38,266), followed by Spain (9,020), Hungary (6,496), Bulgaria (6,303), and Belgium (6,285). Conversely, the lowest numbers of immigration detainees were reported in Estonia (94), Slovakia (204), Latvia (221), and Lithuania (243). In terms of fluctuations in the number of detained migrants, the period between 2009-2013 saw the greatest increases in Bulgaria (over 600 percent) and Hungary (226 percent). The largest decreases were recorded in Slovakia (65 percent) and the Netherlands (53 percent).

Unfortunately, few of the countries included in the study provided specific statistics on the different categories of non-citizens within the total numbers of immigration detainees. Only nine countries provided information 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 includes a list of situations that justify the detention of asylum seekers. Human rights advocates expressed concern that this might lead to more widespread use of detention during asylum processes. While the deadline for transposition of the recast is July 2015, and only a few countries have already transposed it, data on the number of asylum seekers in detention should be systematically collected now, before the transposition of the recast, in order to determine whether these concerns were justified.

Grounds for immigration detention

The study provides a helpful overview of the most common grounds upon which non-citizens can be detained under the domestic legislation of the countries included in the study. With regard to migrants in return proceedings, the report identifies 11 grounds established in the legislation of the states bound by the Returns Directive (i.e. all countries covered by the study, with the exception of the UK and Ireland). These grounds include: risk of absconding (22 countries), avoidance of 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).

Of these grounds, only the first two are explicitly outlined in the Returns Directive. While the third one (to effect the removal) is also mentioned in the Directive, it is included 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, which did not result in any infringement proceedings by the European Commission, demonstrates that, contrary to the position of the Directive’s proponents, the Directive does not provide a comprehensive list of grounds. A complete list of the circumstances that justify deprivation of liberty would undoubtedly prevent states from systematically ordering detention.

The report defines immigration detention as a non-punitive administrative measure (p. 8). However, two of the grounds listed above appear to extend beyond administrative migration-enforcement rationale. Detention on account of a threat to national security and public order or a risk that the non-citizen will commit a criminal offense arguably aims to deter or incapacitate. It is argued here that if a migrant were to actually threaten public order, he or she should be subject to criminal rather than migration laws. Combining the functions of these distinct branches of law creates confusion and contributes to negative public perceptions of migrants.

With respect to the detention of persons seeking international protection, the most common grounds include: the need to establish the person’s identity (17 countries), risk of absconding (16 countries), threat to national security and public order (15 countries), suspicion of abuse of the asylum procedure (11 countries), non-compliance with the alternatives to detention (9 countries), destroyed or forgotten identity documents (8 countries), and reason to believe that the person will commit a criminal offence (7 countries).

Once the recast Reception Conditions Directive has been transposed, several states will need to modify the domestic provisions that outline circumstances justifying detention in order to comply with the Directive, which provides 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 in this section are significant, and reveal how the Member States participating in the Returns Directive exploited the Directive’s somewhat lax requirements for judicial control of detention. In fact, one of the Directive’s weaknesses appears to be its lack of mandatory and ex officio judicial supervision of detention. Under the Directive, detention must be ordered by administrative or judicial authorities. The report shows that, in most countries, the authorities who decide to arrest a migrant also conduct an initial assessment of whether the grounds for detention apply. These are usually non-judicial bodies, such as the police (11 countries), migration and asylum authorities (10 countries), Interior Ministries (5 countries), and border guards (5 countries). A court ultimately decides whether to detain in only nine countries. Therefore, the vast majority of countries relied upon the option under the Directive to authorize administrative bodies to order detention. In such cases, the Directive obligates states to either provide a prompt judicial review of detention or grant the detainee the right to apply for such a review. Obviously, the second option offers less protection and migrants often require legal assistance to exercise that right. Yet, this is the option states have favored. The data collected in this section of the report demonstrate that in 16 of the countries studied, there is no automatic periodic judicial review of detention. Administrative courts are only involved following an application by the detainee.

Places of detention

Both the Returns Directive and the recast Reception Conditions Directive prioritize the use of specialized detention facilities to confine immigration detainees. In July 2014, the Court of Justice of the European Union interpreted the relevant provision laid down in the Returns Directive and ruled that the lack of specialized facilities in one part of the Member State’s territory does not justify using prisons if specialized facilities are available in another part of its territory.

This section of the report is unclear. The study uses the term “detention facility” to refer to specialized facilities. It states that the use of “detention facilities” is a “consolidated practice across all (Member) States, with the exception of Ireland where third-country nationals are detained in prisons” (p. 28). This statement implies that the other countries use specialized detention facilities, but that is not the case. For example, Germany uses prisons, Greece uses police stations, while Austria utilizes “police detention centers,” a unique type of facility that holds administrative detainees and criminal suspects in addition to immigration detainees. In fact, the report categorizes immigration detention sections of German prisons and Austrian “police detention centers” as specialized facilities. It also notes that migrants can be detained in Greek police and border stations for short periods. This statement seems to disregard a systematic practice by Greek authorities, confirmed by several monitoring bodies, of detaining migrants in such facilities for the maximum length of detention.

It is important to note that the report’s findings are based on national reports prepared by EMN National Contact Points (NCPs). Of the 26 NCPs that 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 fact that the Ministries of Interior were involved in the drafting of at least 70 percent of these reports suggests that the positive findings of these reports should be interpreted with caution. Specifically, in order to develop a more comprehensive understanding of the use of immigration detention in Europe, it would be advisable to collect information from academic institutions and relevant NGOs.

Alternatives to detention

The Returns Directive and the recast Reception Conditions Directive require states to prioritize the use of “less coercive measures.” The study lists the most common non-custodial alternatives to detention, including: reporting obligations (23 countries), residence restrictions (18 countries), surrender of documents (15 countries), and release on bail (13 countries). However, it is not clear whether these alternatives to detention are merely provided for in the domestic legislation of the countries included in the study or are also used in practice. Indeed, when it comes to the use of alternatives to detention, there tends to be a significant difference between theory and practice. In its March 2014 Communication on Return Policy, the European Commission assessed both the legal framework for and practical application of alternatives to detention in 31 countries. In total, the countries included in the study reported 87 cases of a legal basis for an alternative to detention in their domestic legislation, all of which fell within the four categories outlined in the EMN report. However, an examination of their practical application revealed that of these 87 reported domestic legal provisions on alternatives, only 32 percent were used in practice, 23 percent were not applied at all, and there was no information available about the use of the remaining 45 percent.

Impact of detention

The final, and one of the most crucial, objectives of the report was to determine whether the use of detention or alternatives to detention contributes to the effectiveness of return policies 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 due to the lack of data available to evaluate this issue. However, the study does make a few points in this regard. It notes that the risk of absconding may be greater with alternatives to detention, since such a risk is not present when a person is detained. On the other hand, alternatives are more cost-effective than detention. Most importantly, the report finds that overall, the impact of both detention and alternatives to detention on the ability of states to successfully carry out a return appears to be insignificant, unlike other factors such as whether the person to be deported has travel documents.

These findings lead to a few concluding observations. When reliance on less costly alternatives to detention can minimize the risk of absconding during return procedures, but states opt for detention instead, it may indicate that detention offers states certain (hidden) advantages. The same is true in cases of systematic and prolonged detention of persons who cannot be deported. It can be argued that, despite being formally classified as an administrative and non-punitive measure, states sometimes use immigration detention as a deterrent, which is a typical function of criminal incarceration. Placing a migrant in detention may be intended to pressure him or her to cooperate with authorities by obtaining travel documents or agreeing to return voluntarily. Using detention for these types of criminal justice purposes appears to benefit States, while simultaneously rendering non-citizens more vulnerable to abuses.

Barnard & Peers: chapter 26 Photo: Amygdaleza detention centre in Greece, credit: www.metamute.org