NCADC News Service
refugees" has turned into "Protection from refugees"
Jesuit Refugee Service-Europe (JRS-Europe), have
produced a report on Detention in Europe, below are selected extracts from the
report chosen by NCADC, emphasis in italics is NCADC's, attached PDF is the
"Detention in Europe:
Administrative Detention of Asylum Seekers and Irregular Immigrants".
"Observation and Position Paper on Detention"
EU Member States as
well as their neighbouring States, most of them among the new Member States
after 1 May 2004, tightened their refugee policies, which became ever more
repressive and restrictive. "Protection of refugees" turned into
"Protection from refugees". This policy trend is even stronger after the
terrorist attacks of 1 September 2001. In the European Union domestic security
as well as refugee protection fall within the competence of Justice and Home
Ministers, and now they clearly give priority to domestic security over refugee
protection. . . . . . .
. . . . EU Member States detain asylum seekers
and other refugees as well as migrants in order to make forceful return,
especially deportation, easier, but also to facilitate processing of asylum
In detention, detainees
do not only suffer from the deprivation of fundamental liberties, often
including the separation from their family and, at times, from their children;
they also suffer from long periods without the opportunity to pursue meaningful
activities. In particular, they suffer from "criminalization" as a result of
being detained, and they face enormous insecurity as a result of fear as to what
the future holds for them. . . .
. . .
. Although, legally, detention is only an administrative measure and not a
measure of the penal system, its application often takes on characteristics of
criminal incarceration, resulting in significant emotional, physical and
mental health problems for detainees.
The maximum duration
under national law for detention of migrants and refugees, including asylum
seekers, varies significantly throughout Europe: for example, from six 173 days
in Spain, 60 days in Italy, three months in Greece, five months in Belgium and
18 months in Germany to an unlimited time period in Great Britain.
. . . . in
October 2002, the EU Commission presented a "Communication to the Council and
the European Parliament on a community return policy on illegal residents". In
this Communication, the EU Commission acknowledged "the need for Member States
to provide for the possibility of detention pending removal". However, the EU
Commission stated in this document, too, that "a fair balance should be struck
between the Member States' need for efficient procedures and safeguarding the
basic human rights of the illegal residents", and it recommended that "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
The EU Council picked this reminder of
human rights and the suggestion of common "minimum standards" up, transformed
it, however, in spirit and content - from safeguarding human rights to
facilitating operational co-operation. . . .
Detention and detention
practises must comply with the Principle of proportionality. Article 49 of the
Charter of Fundamental Rights of the European Union explicitly refers to this
principle, which demands that any measure of a public authority that affects a
human right must be appropriate, necessary and reasonable. It is a general
common principle of law limiting legislative and administrative power, if a
basic right is subjected to limitations.
Right to freedom of
Detention is the
contrary to the freedom of movement. According to Article 45 of the Charter of
Fundamental Rights of the European Union, freedom of movement is granted not
only to citizens of EU Member States, but freedom of movement may be granted to
"nationals of third countries legally resident in the territory of a Member
State", too. National legislation determines who is considered to be "legally"
residing, but national legislation in the EU Member States vary in this respect.
Generally, refugees are not considered "illegal", when there are no legal
grounds for expulsion; thus, when there are no legal grounds for expulsion,
refugees need to be considered as "legally resident."
Right to medical
Article 23 of the
Geneva Convention relating to the Status of Refugees states "the Contracting
States shall accord to refugees lawfully staying in their territory the same
treatment with respect to public relief and assistance as is accorded to their
nationals, including medical attendance and hospital treatment.
Article 28 of the
International Convention on the Protection of the Rights of All Migrant Workers
and Members of Their Families states that "migrant workers and members
their families shall have the right to receive any medical care that is
urgently required for the preservation of their life or the avoidance of
irreparable harm to their health on the basis of equality of treatment with
nationals of the State concerned. Such emergency medical care shall not be
refused them by reason of any irregularity with regard to stay or
Family life and family
unity enjoy special protection, too. Regarding detained family members,
especially the detention of mothers and single fathers of young children whom
detention separates from their children, but also regarding administrative
rules on family visits to detainees, Article 33 of the Charter of Fundamental
Rights of the European Union states, that "the family shall enjoy legal,
economic and social protection." Also, Article 23 of the International
Covenant on Civil and Political Rights as well as Article 8 of the European
Convention on Human Rights and Article 10 of the International Covenant on
Economical, Social Cultural Rights oblige States to protect family
UNHCR's Revised Guidelines
on Applicable Criteria and Standards Relating to the Detention of Asylum
In 1999 UNHCR
established Guidelines on Applicable Criteria and Standards Relating to the
Detention of Asylum Seekers. The detention of asylum-seekers is, in the view of
UNHCR, "inherently undesirable".
. . . . This is even more so in the case of
vulnerable groups such as single women, children, unaccompanied minors and those
with special medical or psychological needs. Freedom from arbitrary detention is
a fundamental human right and the use of detention is, in many instances,
contrary to the norms and principles of international law.
. . . . As a general principle asylum-seekers
should not be detained. According to Article 14 of the Universal Declaration of
Human Rights, the right to seek and enjoy asylum is recognised as a basic human
right. In exercising this right asylum-seekers are often forced to arrive at or
enter a territory illegally. However, the position of asylum-seekers differs
fundamentally from that of ordinary immigrants in that they may not be in a
position to comply with the legal formalities for entry. This element, as well
as the fact that asylum-seekers have often had traumatic experiences, should be
taken into account in determining any restrictions on freedom of movement based
on illegal entry or presence."
. . . . UNHCR has
emphasized that while detention may be used in exceptional circumstances,
consideration should always be given first to all possible alternatives.
Thereafter, detention should be used only if it is reasonable and proportional
and, above all, necessary.
Political and legal
political and legal notions like "illegal immigrant" or "removal" of persons. A
behaviour or a situation can be "illegal", i.e. not to comply with law, but not
a person. "Removal" of persons brings back, in memory, terrifying situations and
events in Europe, such as "concentration camps" and "ethnic
JRS-Europe wants the
use of detention to be avoided.
JRS-Europe is of the
opinion that any restriction to personal life, which is not justified by the
purpose of the detention, is in contradiction to the principle of
proportionality and endangers human rights.
for deportees is in most cases unnecessary and ineffective
has shown that only 2 % of people released on bail have
factors motivating a person to leave his/her home country and to go to another
country, such as civil war, human rights violations, disastrous economical or
environmental situations, are more decisive than the deterrent effect of
criminalizes people who have not committed a crime.
causes unnecessary harm and injustice.
itself does not help to verify a person's identity.
has enormous financial costs.
has an adverse effect on the morals of society as it normalizes exclusion
and administrative imprisonment of a part of the society and provokes
racism and xenophobia.
If detention cannot be
avoided, a detention order must be based on grounds provided by a formal law. A
detention order itself must be issued in accordance with a procedure prescribed
by law, whether issued by a court or another public authority. A detention order
should never be based solely on the fact that a person has entered the territory
of the state "illegally" or stays "illegally" because this does not
automatically imply an intention not to comply with the duty to leave the
country, for instance after a negative asylum procedure, and may be unnecessary.
Any regulation providing grounds for detention orders must clearly state that
the order must be based on objective evidence regarding the facts and the
personal behaviour in the past and that due to this behaviour no other less
restrictive means exists to enforce return. The behaviour can only be considered
when the concerned person knew about his/her obligation to leave the country
(was informed about his/her obligation in a language he/she understands), and
when he/she had informed access to the appeal process.
JRS-Europe is concerned
that domestic security is used more and more as a reason to detain refugees. If
public order and/or national security are a consideration in such cases, any
measures to detain must be based on criminal law. Administrative detention is
neither an adequate nor a reasonable response.
Criminal and administrative law can and should address
the problem of threats to national security and public order without
criminalizing innocent refugees and migrants.
The duration of
detention often exceeds reasonable time limits, and alternative methods of
assuring a person's presence during proceedings and/or ultimate departure -
reporting to local authorities, guarantors, custody agreements, bail, open
detention centres - are often ignored or not considered. National law must
specify a maximum duration for detention.
JRS-Europe is aware that it may be
problematic to suggest a maximum duration by proposing a precise term.
However, given the enormous differences in national provisions in Europe,
JRS-Europe also recognizes danger in not doing so and leaving it to the
discretion of the states to fix a term - or indeed not to fix any
Compensation should be
provided to any person who has been unlawfully detained or in case of a breach
of Article 5 of the European Convention on Human Rights or Article 9 of the
International Covenant on Civil and Political Rights.
Special protection for
especially vulnerable persons
believes that special groups of individuals should never be detained in
detention centres given the negative impact of detention on their psychological
and physical health and on the right to family life. These groups
with special physical or mental health needs
older than 65 years
v Mothers or
fathers accompanying minors under 14 years
Chronically or seriously ill persons
Detention as a push factor
for irregular immigration
that the more asylum seekers are detained after lodging a claim either at the
frontier or in the country, the more those who have protection needs may be
forced into situations of illegality rather than pursuing legitimate asylum
appeals - To governments and legislators in
governments and legislators in European States to avoid the use of detention
because detention implies restrictions of fundamental human rights.
governments and legislators in European States not to use detention as a
deterrent or as a reception or return policies element that is applied in a
systematic and general way because in an "area of freedom, justice and security"
there is no place for systematic restrictions of human rights.
governments and legislators in European States not to detain asylum seekers and
other people applying for a status until a final decision is made, as this is
the only way to ensure the right of a fair asylum procedure by enabling
applicants to easily consult a lawyer, a refugee organization etc. of their
choice and confidence in order to obtain legal advice and avoid
re-traumatization and intimidation. "Final decision" means the exhaustion of all
administrative and judicial appeals even if there is no suspensive
urges governments and legislators in European States, which detain refugees
and migrants, that such detention should be as short as possible, and should
never exceed a total time period of two months, be it in one or multiple
periods of detention even after release or transfer to another centre. This
suggestion of a maximum time period should not be used as a justification to
detain or to increase any maximum duration of less than two months under
current legislation. In case a person cannot be returned within this two-month
period and therefore must released, he/she must not be left in an illegal
status and/or destitute. These are requirements of the Principle of
governments and legislators in European States to transpose and implement
International Public Law concerning detention and detainees and to adhere to the
UN Body of Principle for the protection of all persons under any form of
detention or imprisonment, the UN Standard Minimum Rules for the Treatment of
Prisoners as well as to the UN Rules for the Protection of Juveniles Deprived of
their Liberty and the Standards of the European Committee for the Prevention of
Torture (CPT) in order to prevent human rights violations of refugees, asylum
seekers and migrants in detention.
Concerning Article 17
and Article 18 of the EU Commission's Amended Proposal for a Council Directive
on minimum standards on procedures in Member States for granting and withdrawing
refugee status of 3 July 2002.
JRS-Europe urges the EU
Member States to ensure that a future EU Council Directive on minimum standards
on procedures in Member States for granting and withdrawing refugee status
complies with International Public Law, especially with Article 31 of the Geneva
Convention relating to the Status of Refugees; there is strong legal evidence
that the way in which Article 17 (2) and (3) are/were formulated might be in
breach of Article 31 of this Convention.
JRS-Europe urges the EU
Member States not use vague formulations only in order to fulfill political time
requirements of Article 63 of the 1999 Amsterdam Treaty, which says that "the
Council (...) shall, within a period of five years after the entry into force of
the Treaty of Amsterdam, adopt (...) minimum standards on procedures in Member
States for granting or withdrawing refugee status".
JRS-Europe reminds that
Article 63 of the 1999 Amsterdam Treaty states, too, that these measures must be
"in accordance with the Geneva Convention (...) and the Protocol of 31 January
1967 relating to the status of refugees and other relevant treaties." Vague
formulations leave room for interpretation to the detriment of asylum seekers
and thus could lead to the detention of asylum seekers in almost all cases and
violate the Geneva Convention.
supports the changes made by the EU Council for Justice and Home Affairs in June
200357, which say, "Member States shall not hold a person in detention for the
sole reason that he/she is an applicant for asylum. (...) Where an applicant for
asylum is held in detention, Member States shall ensure that there is the
possibility of speedy judicial review." However, J JRS-Europe would prefer to
see it stated that asylum seekers should generally not be detained, in
particular especially vulnerable people, absent compelling reasons to the
To relevant EU
the appeal concerning Article 17 and Article 18 of the EU Commission's Amended
proposal for a Council Directive on minimum standards on procedures in Member
States for granting and withdrawing refugee status also to the EU Commission and
the European Parliament.
relevant EU institutions not to promote the use of detention.
relevant EU institutions not to promote detention as a deterrent or as a
reception or return policies element that is applied in a systematic and general
way because in an "area of freedom, justice and security" there is no place for
systematic restrictions of human rights.
relevant EU institutions not to promote the detention of asylum seekers and
other people applying for a status until a final decision is made, as this is
the only way to ensure the right of a fair asylum procedure by enabling
applicants to easily consult a lawyer or a refugee organization of their choice
and confidence in order to obtain legal advice and avoid re-traumatization and
relevant EU institutions to influence the governments and legislators in
European States, which detain refugees and migrants, to make sure that such
detention is as short as possible, and should never exceed a total time period
of two months, be it in one or multiple periods of detention even after release
or transfer to another centre. This suggestion of a maximum time period should
not be used as a justification to detain or to increase any maximum duration of
less than two months under current legislation. In case a person cannot be
returned within this two-month period and therefore must be released, he/she
must not be left in an illegal status and/or destitute. These are requirements
of the Principle of proportionality.
journalists for their support in all the above-mentioned matters, asks them to
investigate and report on detainees and detention in Europe.
End of bulletin:
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