Izabella Majcher, a researcher at the Global Detention Project and the Global Migration Centre, and a PhD candidate in International Law at the Graduate Institute of International and Development Studies in Geneva, examines a legal question: can immigration detainees be held in prisons alongside ordinary prisoners?

On July 17, 2014, the Court of Justice of the European Union (CJEU) addressed this question in its decisions regarding the combined cases of Bero and Bouzalmate and the separate case of Pham. These judgments mark the ninth and tenth instances where the Court has interpreted the EU Returns Directive, with the Mahdi case earlier in June 2014 being the previous one.

A significant portion of Luxembourg’s case law concerning the Returns Directive has focused on pre-removal detention, covering aspects like detention length, the relationship between pre-removal detention and criminal imprisonment, detention during asylum procedures, and procedural standards for reviewing and extending detention. However, the Bero & Bouzalmate and Pham cases mark the first time the Court has interpreted the Directive’s provisions on detention conditions.

Questions referred to the CJEU for a preliminary ruling

The CJEU was asked to provide a preliminary ruling on the places used for detention in Germany, as regulated by Article 16(1) of the Returns Directive. This article states that detention should typically occur in specialized facilities, and if a Member State must use prisons due to a lack of specialized facilities, third-country nationals must be kept separate from the general prison population.

All three requests for a preliminary ruling involved pre-removal detention in prisons instead of specialized immigration detention facilities. Ms. Bero spent nearly a month in Frankfurt prison alongside the general prison population, while Mr. Bouzalmate spent three months in a separate immigration detention area within Munich prison. These situations arose because Hesse and Bavaria, the German states where they were detained, do not have dedicated immigration detention centers.

Germany’s Residence Act, which incorporates Article 16(1) of the Directive, grants individual states (Länder) authority over immigration detention. This act permits detention in other custodial institutions if a state lacks specialized facilities, provided detainees are separated from the general prison population.

In the Bero & Bouzalmate cases, the referring courts asked the CJEU to clarify if Article 16(1) of the Returns Directive mandates a member state to, as a rule, detain non-citizens in specialized detention facilities pending removal if such facilities exist only in some of the member state’s federated states.

Similarly, the Pham case involved over three months of pre-removal detention in prison. However, Ms. Pham had signed a declaration consenting to detention alongside the general prison population to have contact with fellow countrymen. The German Federal Court of Justice referred a question to the CJEU: is it consistent with Article 16(1) of the Returns Directive to hold a migration detainee with the general prison population if they consent to this arrangement?

The CJEU’s decisions

In both judgments, the Court adopted Advocate General Bot’s Opinion issued in April 2014. The Court determined that a member state cannot justify detaining non-citizens in prison before removal due to a lack of specialized facilities in a region within its borders (Bero & Bouzalmate). This principle holds even if the detainee consents to being held in a prison (Pham).

Regarding Bero & Bouzalmate, the Court determined that Article 16(1) of the Return Directive mandates a member state to generally detain migrants in specialized facilities during pre-removal detention, even if the member state has a federal structure where a federated state responsible for detention lacks such a facility. This conclusion rests on two primary arguments.

The Court first highlighted that Article 16(1)’s first sentence establishes the principle of pre-removal detention in specialized facilities. Using prisons, as allowed by the second sentence of Article 16(1), is an exception to this principle and therefore requires strict interpretation (Bero & Bouzalmate).

The Advocate General’s Opinion focused on interpreting the second sentence, observing notable differences in Article 16(1)’s wording across different language versions. While the English version permits detention in prisons if specialized accommodation is unavailable, the German version allows it if such facilities are absent. The Advocate General deemed the German version incorrect, as it would enable states to circumvent the principle outlined in the first sentence, rendering it ineffective.

Secondly, the Court addressed the country’s federal structure, stating that the obligation under Article 16(1)’s first sentence, requiring detention primarily in specialized facilities, applies to member states as a whole, regardless of internal administrative or constitutional structures. Therefore, the presence of specialized facilities in some federated states does not constitute sufficient transposition of the Returns Directive if other federated states within that member state lack such facilities.

The Court expanded on its conclusions from Bero & Bouzalmate in the Pham case. It ruled that Article 16(1)’s second sentence doesn’t permit member states to detain migrants in prisons alongside the general prison population before removal, even with consent.

Specifically, when a member state invokes the exception in Article 16(1)’s second sentence—using prisons due to the unavailability of specialized facilities—it must keep immigration detainees separate from the general prison population. The Court noted that the Directive doesn’t provide any exceptions to the separation obligation. It emphasized that this separation is more than a procedural rule; it is a fundamental condition for such detention, and failing to comply would generally make the detention incompatible with the Directive.

Comments

Since the Returns Directive’s adoption in 2008, Article 16(1) has required interpretation. The Court’s judgments in Bero & Bouzalmate and Pham are thus timely. However, their impact on migrant detention across Europe necessitates further examination.

These judgments will undoubtedly lead to changes in Germany’s use of prisons for immigration detention. A recent report by Pro Asyl reveals that ten out of sixteen German states currently hold immigration detainees in prisons. However, the Bero & Bouzalmate judgment clarifies that Germany, as a federal state, is not obligated to establish specialized centers in every state. Instead, it must ensure, through means like cooperation agreements between states, that detainees can be placed in specialized facilities in other states if their own state lacks them. Currently, the ten states without specialized centers utilize around sixteen prisons with a combined immigration detention capacity of over 800. In contrast, Germany has only four specialized detention facilities, with a total capacity of approximately 450.

The Court’s reasoning in Bero & Bouzalmate—that the absence of specialized detention facilities in a federated state does not inherently justify using prisons for immigration detention—holds relevance for other federal states like Austria and Switzerland (bound by the Returns Directive as a Schengen associate). This reasoning could have a wider application, impacting practices based on the geographic location of detention facilities, not just a state’s administrative structure. This aligns with the Advocate General’s viewpoint that if a country has a specialized detention facility with adequate capacity, it should detain individuals there, regardless of the facility’s location. Therefore, authorities would likely be unable to invoke the exception clause in Article 16(1)’s second sentence to hold migrants in prison if space is available in a specialized facility, even if it’s located far away.

Under what circumstances can a state rely on Article 16(1)’s second sentence? When can authorities justifiably claim they “cannot” detain migrants in a specialized facility and must use a prison? The Advocate General, in his Opinion, clarifies the application of this exception clause. He links it to Article 18 of the Directive, which allows states to deviate from Article 16(1) in emergencies, such as when a large, unexpected influx of third-country nationals overwhelms detention facility capacity. The Advocate General suggests that the “emergency situations” described in Article 18(1) provide insight into other circumstances where states might invoke the exception clause in Article 16(1). Therefore, a member state can justify prison detention only under exceptional and legitimate circumstances, such as proven necessity, where a careful assessment of the situation necessitates such a solution.

The judgments in Bero & Bouzalmate and Pham, alongside the Advocate General’s comprehensive views, significantly restrict using prisons to detain migrants. However, research by the Global Detention Project shows that police stations, more often than prisons, are used across Europe in place of specialized facilities. This practice has drawn criticism from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), which argues that police stations are generally unsuitable for prolonged detention and should only be used for brief periods. Despite this, states often apply their standard maximum detention limits to migrants held in police stations. This raises the question: is this practice compatible with Article 16(1) of the Returns Directive, which makes no mention of using police stations? Can the Court’s decisions in Bero & Bouzalmate and Pham be applied in this context? This widespread practice among the Directive’s member states requires evaluation by the CJEU.

Finally, the Court’s stance in Pham regarding the separation obligation aligns the Directive’s provisions with international human rights standards. The Court considers it a fundamental condition (not merely a procedural one) for detaining migrants in prisons. Therefore, if a state cannot provide separate accommodation in prison, it cannot invoke the exception clause under Article 16(1). However, the specifics of this separation obligation remain unclear. Is it enough to provide separate cells for migrants while allowing contact with other detainees during meals or recreation? Or does the obligation necessitate separate units for immigration detainees? The Court does not provide clarification. Without a clear understanding of the Court’s interpretation of the separation principle, assessing practices across the EU is difficult. In fact, the European Commission’s recent communication on EU return policy indicates that the legislation in nine countries does not fully mandate a “strict separation” between immigration detainees and the general prison population. Perhaps the Advocate General’s view should be adopted, which defines the separation requirement as “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.”

Photo Credit: © www.migreurop.org/Sara Prestianni

Barnard & Peers: chapter 26