Migration-Related Detention 
and International Law

 

Regional Norms and Standards: Europe

A number of instruments, documents, and decisions adopted in the context of the different European organizations and institutions can be relevant to the situation of non-citizens in detention. Of particular importance are those adopted within the framework of the Council of Europe, which is the main organization promoting the European human rights protection system. In addition, action taken within the context of the European Union can have an impact on the situation of non-citizens in detention in the region.

 

  

  

Council of Europe . The Council of Europe was founded in 1949 and comprises 47 member states (as of mid-2008). The Council places particular emphasis on legal standards and the protection of human rights, democratic development, and the rule of law. At the centre of the council is the Convention for the Protection of Human Rights and Fundamental Freedoms, adopted in 1950, which is more commonly known as the European Convention on Human Rights (ECHR). The convention created the European Court of Human Rights, which can receive complaints from individuals alleging violations of their rights under the convention and its protocols.

 

Also under the auspices of the Council of Europe is the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, adopted in 1987, which created the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). The CPT is competent to carry out regular visits to places of detention in the territories within the jurisdiction of states parties. The CPT's reports on country visits are a unique resource for those wishing to investigate state practices vis-à-vis all types of detention, including migration-related detention (see CPT Web site, “States: Documents and Visits”).

 

 

European Union. As noted above, action taken within the context of the European Union (EU) can also be relevant to the situation of non-citizens in detention. The EU is the union of 27 states (as of mid-2008) to develop political, economic, and social cooperation. Important institutions and bodies of the EU include the European Commission, the European Parliament, the Council of the European Union, the European Court of Justice, and the European Central Bank.

 

The EU has endeavoured to adopt common policies for all members states in a number of areas, including immigration, which falls under the European Commission's Directorate General for Justice, Freedom, and Security. This has lead to the adoption of directives that are relevant to the situation of non-citizens in detention, such as standards for the reception of asylum seekers. (For more on common policies, see the subheading below, "Relevant European Union Directives.")

 

Member states of the EU are also members of the Council of Europe and thus bound by the various human rights norms and standards that exist within that framework.

 

 

European Convention on Human Rights (1950). The Convention for the Protection of Human Rights and Fundamental Freedoms, also known as the European Convention on Human Rights, was adopted in 1950 and entered into force in 1953. The convention has been supplemented by several additional protocols, which have extended the number of protected rights and freedoms and reformed the functioning of the protection system created by the treaty.

 

The European Convention protects the rights to liberty and security of the person under article 5, which establishes that “Everyone has the right to liberty and security of person” and that “No one shall be deprived of his liberty” except under certain circumstances and “in accordance with a procedure prescribed by law.” The European Convention is the only one of the general human rights treaties to specifically enumerate the grounds that can lawfully justify a deprivation of liberty. Among those circumstances are “the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition”(Art. 5, Para . 1(f)).

 

Article 5 Paragraph 4 of the European Convention determines that “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful” (Art. 5, Para 4).

 

Additionally, article 4 of Protocol 4, prohibits the collective expulsion of aliens. (Art. 4, Protocol 4).

 

 

European Court of Human Rights. The European Court was established by the European Convention on Human Rights. At present, following reforms that took place with the entry into force of Protocol 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (1994) in 1998, it is a full- time organ with competence to receive individual or state complaints regarding allegations of violations of the European Convention and to make binding decisions to states parties (or contracting parties) regarding such breaches. All member states of the Council of Europe must ratify the European Convention on Human Rights and are consequently subject to the European Court 's jurisdiction. The court may also give advisory opinions on legal questions concerning the interpretation of the convention and protocols, though this later element has generally been a less prominent feature of the court's functioning (European Court of Human Rights 2008, “Historical Background”).

  

  

Relevant Rulings of the European Court of Human Rights. The European Court of Human Rights has made a number of rulings germane to the issue of migrant detention:

 

  • Transit Zone Detention
  • Review of Lawfulness of Detention
  • Detention for Deportation
  • Prevention of Unauthorized Entry

Transit Zone Detention. In 1996, the court ruled that the holding of persons in a transit zone at airports can be considered a deprivation of liberty and that its prolongation requires speedy review by the courts (Amuur v France 1996 , paras. 43-49).

 

In the 1996 case, the court considered that French law at the time of the events under review by the court did not sufficiently guarantee the right to liberty. Thus, the court noted that this state of affairs did not allow “the ordinary courts to review the conditions under which aliens were held or, if necessary, to impose a limit on the administrative authorities as regards the length of time for which they were held. They did not provide for legal, humanitarian, and social assistance, nor did they lay down procedures and time-limits for access to such assistance so that asylum-seekers like the applicants could take the necessary steps” (Amuur v France 1996 , para. 53).

 

Since this ruling, the issue of transit zone detention has been raised in other international fora. In his February 2008 report to the UN Human Right Council, for example, the Special Rapporteur on the Human Rights of Migrants stated: “Migrants and asylum‑seekers are sometimes detained at airport transit zones and other points of entry, under no clear authority, either with the knowledge of government officials at the airport or simply on the instructions of airline companies before being returned to their countries. The difficulty or impossibility of reaching any outside assistance impedes the exercise of the right of the persons concerned to challenge the lawfulness of the State's decision to be detained and returned and to apply for asylum, even in the presence of legitimate claims” ( Special Rapporteur on the Human Rights of Migrants Jorge Bustamante 2008a, para. 47).

 

Review of Lawfulness of Detention. The European Court has held that detained persons must have the ability to obtain a periodic review by a court of the lawfulness of their detention, both at the time of the initial deprivation of liberty and in situations where new issues of lawfulness can arise (see, for example, Benjamin and Wilson v United Kingdom 2002 , para. 33).

 

According to the court, the legal body that carries out the review must “exhibit the necessary judicial procedures and safeguards appropriate to the kind of deprivation of liberty in question, including most importantly independence of the executive and of the parties” ( Benjamin and Wilson v United Kingdom 2002, para. 33; De Wilde, Ooms, and Versyp v. Belgium 1971, Series A no. 12 , paras 76 and 78.)

 

Additionally, the court or body that carries out the review must have the competence to review the “lawfulness” of the detention and to order release if the detention is unlawful ( Benjamin and Wilson v United Kingdom 2002, para. 34; Singh v. the United Kingdom 1996, para. 66.)

 

Detention for Deportation. Regarding the European Convention's article 5.1(f), which provides for “the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition,” the court has considered that detention with a view to deportation can only be justified for as long as deportation proceedings are in progress and that deportation proceedings must be prosecuted with due diligence for the detention to be permissible (Chahal v. the United Kingdom 1996, para. 113.)

 

Prevention of Unauthorized Entry. In January 2008, the court for the first time examined the meaning of the phrase “to prevent his effecting an unauthorized entry into the country” present in the European Convention's article 5.1(f) (Saadi v the United Kingdom 2008). The case concerned the detention of an asylum seeker for seven days during the examination of his asylum application and the fact that the detention was not based on the asylum seeker's specific circumstances, such as an assessment of a risk of flight.

 

The court concluded that article 5.1(f) provides an exception to the general rule established by that article guaranteeing liberty and security of the person (Saadi v the United Kingdom , para. 64). It considered that “until a State has ‘authorized' entry to the country, any entry is ‘unauthorized.'” The court further considered that permitting detention only of a person who is “shown to be trying to evade entry restrictions” would be too narrow an interpretation of Article 5.1(f) and would furthermore be inconsistent with, among other, UNHCR Executive Committee 1986, Conclusion No. 44, and UNHCR's Guidelines as these “envisage the detention of asylum seekers in certain circumstances, for example while identity checks are taking place or when elements on which the asylum claim is based have to be determined” (Saadi v the United Kingdom 2008, para. 65).

 

Nevertheless, the Court stressed that to be compatible with the European Convention any detention must be lawful and cannot be arbitrary (Saadi v the United Kingdom 2008, para. 67). In the context of Article 5.1(f), the detention cannot be considered arbitrary if it is carried out in good faith by the authorities ordering the detention; it is closely connected with the purpose of the restriction permitted (i.e. preventing the unauthorized entry or person against whom action is being taken with a view to deportation); the place and conditions of detention are appropriate, in particular as this measure is “applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country”; and the length of the detention does not exceed that reasonably required for the purpose pursued (Saadi v the United Kingdom , para. 74).

The Saadi v the United Kingdom ruling proved controversial, especially among human rights advocates. In a press release, Amnesty International (AI) stated that the decision “appears to give states a broad discretion to detain people who are fleeing persecution, and are often in fear for their lives, for no other reason than the administrative convenience of the state in which they have sought asylum or international protection” (Amnesty International 2008a).

 

 

The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1987). The Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment established a system of visits to places of detention of states parties through its European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) with the purpose of protecting persons deprived of their liberty from torture and other inhuman or degrading treatment or punishment. All member states of the Council of Europe have ratified the European Convention for the Prevention of Torture.

 

According to its web site, the CPT “visits places of detention (e.g. prisons and juvenile detention centres, police stations, holding centres for immigration detainees, and psychiatric hospitals), to see how persons deprived of their liberty are treated and, if necessary, to recommend improvements to States.” Details from CPT country visits are documented in reports and press releases, which are then posted on the CPT's web site. These documents provide a good resource for those wishing to investigate state practices vis-à-vis all types of detention, including migration-related detention (CPT Web site, “States: Documents and Visits”).

 

The CPT has developed standards relating to the treatment of persons deprived of their liberty, including (in section IV of the CPT Standards) provisions on foreign nationals detained under aliens legislation. These include the principles that when persons are held for extended periods they should be accommodated in centres specifically designed for that purpose and in adequate conditions; and that “Immigration detainees should—in the same way as other categories of persons deprived of their liberty—be entitled, as from the outset of their detention, to inform a person of their choice of their situation and to have access to a lawyer and a doctor. Further, they should be expressly informed, without delay and in a language they understand, of all their rights and of the procedure applicable to them” (CPT 2002 , Section IV, paras. 29- 31).

 

 

Council of Europe Convention on Action against Trafficking in Human Beings (2005). The Convention on Action against Trafficking in Human Beings was adopted by the Council of Europe in 2005 and entered into force in February 2008. Article 14 of the convention provides that states parties shall issue a renewable residence permit to victims when either or both of the following conditions are met: a) “the competent authority considers that their stay is necessary owing to their personal situation; b) the competent authority considers that their stay is necessary for the purpose of their cooperation with the competent authorities in investigation or criminal proceedings.” (Art. 14.1). The same article provides that residence permits for child victims are to be issued in accordance with the best interests of the child and, where appropriate, renewed under the same conditions (Art. 14.2).

 

 

Relevant European Union Directives. Since 1999, the European Union has promoted a number of measures with a view to establishing common asylum and immigration policies. Among the initiatives have been the adoption of various policy directives and the conclusion of readmission agreements with non-EU countries. EU directives are legislative acts that require member states to achieve a specific result. However, directives normally give states a certain level of discretion in their implementation. The most relevant to the situation of non-citizens (or, as they are frequently termed in the EU context, “third country nationals”) are:

 

  • Directive on Minimum Standards for the Reception of Asylum Seekers
  • Directive on Minimum Standards on Procedures for Granting and Withdrawing Refugee Status
  • “Return Directive”

Directive on Minimum Standards for the Reception of Asylum Seekers (European Union Council 2003). The 2003 EU Council Directive Laying Down Minimum Standards for the Reception of Asylum Seekers provides that EU member states “may confine an applicant (for asylum) to a particular place in accordance with their national law” when “it proves necessary, for example, for legal reasons or for reasons of public order” (European Union Council 2003, Article 7.3).

 

Directive on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status (European Union Council 2005). The 2005 EU Council Directive on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status states that member states “shall not hold a person in detention for the sole reason that he/she is an applicant for asylum” and that “Where an applicant for asylum is held in detention, Member States shall ensure that there is a possibility of speedy judicial review” (European Union Council 2005 Article 18).

 

“Return Directive” (European Union Council 2008). In 2005, the European Commission proposed a directive on common standards and procedures for the return of irregular migrants from non-EU countries. On 18 June 2008, after an at times divisive debate between EU members over the details of the directive, the European Parliament adopted a directive, titled Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals (also known as the “Return Directive”). The final text of the provisional directive contained compromises on a number of controversial issues. These included: An obligation to impose an entry ban of up to five years if the illegally staying third-country national does not accept to return voluntarily (European Union Council 2008, Article 11); an obligation to provide illegally staying third-country nationals in pre-removal detention with legal aid in accordance with national legislation (European Union Council 2008, Article 13); and a maximum pre-removal detention period of up to 18 months, with an initial 6 months maximum but with the possibility for member states to extend detention for an additional 12 months in special circumstances (European Union Council 2008, Article 15).

 

This provisional directive proved highly controversial with an array of actors, including many non-EU states, UN bodies, and civil society groups. In June 2008, the Permanent Council of the Organization of American States (OAS) unanimously approved a resolution (CP/RES. 938 (1654/08)) requesting the OAS Secretary General to accompany a High Level Mission of OAS members to the European Union to hold a dialogue with their counterparts about the implications of the Return Directive (OAS Permanent Council 2008).

 

Ten of the Special Procedures of the UN Human Rights Council sent a letter to the Presidency of the Council of the European Union expressing concerns regarding the directive. The letter stated, "One principal concern relates to the detention regime pending removal procedures for irregular immigrants. The Directive envisages detention periods of up to 18 months, which appear to be excessive." It also noted that “irregular immigrants are not criminals. As a rule they should not be subjected to detention at all. Member States are obliged to explore the availability of alternatives to detention and detention must only be for the shortest possible period of time” (UN Press Release 2008).

 

Amnesty International stated, “We believe that the text approved on Wednesday 18 June by the European Parliament does not guarantee the return of irregular migrants in safety and dignity. On the contrary, an excessive period of detention of up to one and a half years as well as an EU-wide re-entry ban for those forcibly returned, risks lowering existing standards in the Member States and sets an extremely bad example to other regions in the world” (Amnesty International 2008b).