Trends in detention of illegal migrants in European Union By Juris Gromovs Kiev, 7 February 2005

Sources of law on detention International treaties European Union law Soft law and best practices National law and practices of the competent authorities and courts

International treaties (1) European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) signed on 4 November 1950 and entered into force 3 September Convention relating to the Status of Refugees adopted on 28 July 1951 and entered into force on 21 April 1954 as supplemented by the New York Protocol of 31 January 1967 the New York Protocol of 31 January 1967 International Covenant on Civil and Political Rights (ICCPR) adopted by the UN General assembly Resolution 2200A (XXI) of 16 December 1966; entered into force 23 March UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) adopted by the UN General Assembly resolution 39/46 on 10 December 1984; entered into force on 26 June 1987.

International treaties (2) UN Convention on the Rights of the Child (CRC) adopted by UN General Assembly resolution 44/25 on 20 November 1989; entered into force on 2 September The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment adopted by the Committee of Ministers on 26 June 1987 UN International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families adopted by UN General Assembly resolution 45/158 of 18 December 1990

International treaties (3) In the future - Treaty establishing a Constitution for Europe? (by granting legally binding force to the European Charter of Fundamental Rights )

Soft Law(1) Universal Declaration of Human Rights (UDHR) of 10 December UNHCR’s EXCOM Conclusion No. 44 (XXXVII) Detention of Refugees and Asylum seekers The Standard Minimum Rules for the Treatment of Prisoners (SMR) adopted by the first UN Congress on the Prevention of Crime and Treatment of Offenders in The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (BOP) adopted by the UN General Assembly resolution 43/173 of 9 December 1988.

Soft Law(2) The United Nations Rules for the Protection of Juveniles Deprived of their Liberty (JDL) adopted by the UN General assembly resolution 45/113 of 14 December The United Nations Standards Minimum Rules for the Administration of Juvenile Justice (the “Beijing Rules”) adopted by the UN General Assembly resolution 40/33 of 29 November UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (February 1999) UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (February 1999)

Soft Law(3) European Charter of Fundamental Rights (till the moment of the entry into force of the Treaty establishing a Constitution for Europe)

Detention in the context of development of EC/EU immigration policy Non-harmonized liberal migration policy in 1960s and 1970s More restricted semi-harmonized policy in 1980s and 1970s Since 1999 – beginning of the era of harmonized EU immigration policy

Regulation of the detention in the secondary legal acts of the European Union or their drafts A variety of definitions: “detention” shall mean confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement Article 2(k) of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum-seekers

Regulation of the detention in the secondary legal acts of the European Union “Detention” means the confinement of an applicant for asylum by a Member State within a restricted area, where his freedom of movement is substantially curtailed Article 2(j) of the Amended proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status, COM(2002) 326 final/2, Brussels,

Future regulation of the detention in the secondary legal acts of the European Union Minimum standards for detention orders could be set at the EU level defining the competence of responsible authorities and the preconditions for detention. They could cover the identification of the groups of persons who should generally not or only under specific conditions be detained. In any case, the detention order should be issued or confirmed without delay within statutory limits by a judicial authority;

Future regulation of the detention in the secondary legal acts of the European Union minimum rules on the conditions of detention, in particular on accommodation standards, could be envisaged in order to ensure a humane treatment in all detention facilities in the Member States. In any case, it should be ensured, if specific detention facilities are not available or capacities are exhausted, that returnees, who are detained in ordinary prisons, might be separated from convicts in order to avoid any criminalisation. The possible time limits for detention pending removal differ widely among EU Member States

Future regulation of the detention in the secondary legal acts of the European Union Question to be answered while developing detention standards: Should binding standards on detention be established and which alternatives to detention should be considered? Which binding standards in terms of legal preconditions and enforcement relating to detention pending removal should be set at Community level? Which groups should not or only under exceptional circumstances be detained? Which accommodation standards should apply to detained returnees? Which time limits should be set to limit the maximum duration of detention? P.31.1 of the EC Commision’s Green Paper on a Community return policy on illegal residents (COM ( final)

Future regulation of the detention in the secondary legal acts of the European Union Detention pending removal is an act of enforcement, deprivation of personal liberty for return enforcement purposes within a closed facility a fair balance should be struck between the Member States’ need for efficient procedures and safeguarding the basic human rights of the illegal residents the 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 procedures Communication of the EU Commission to the Council and the European Parliament on a community return policy on illegal residents

Future regulation of the detention in the secondary legal acts of the European Union These standards could cover · Grounds for detention pending removal; · Identification of the groups of persons who should generally not or only under specific conditions be detained; · Rules concerning the issue of a detention order: · Provisions on the judicial control; · Time limits for the duration of detention pending removal; · Rules on the conditions of detention, in particular on accommodation standards, legal assistance, to ensure humane treatment in all detention facilities in the Member States.

Costs of the detention procedures(1) “But it costs GBP 2,700 a week to hold each [person] at Oakingham, as much as the Ritz”. G.Kerevan, ”Collapse of Immigration Policy”, The Scotsman, September 4, 2001 Detention of an asylum-seeker costs far more than sending a child to Britain's most expensive private school. A. Dummett, „Immigration Control in Europe - The Long-term Consequences of Short Sighted Legislation on Immigration”

Costs of the detention procedures(2) Costs of the detention vary greatly country per country

Place of detention Notions of “detention centre”, “accomodation centre” and “reception centre”, as well as airport transit zones are being used in the political and legal documents of EU National definitons and practical importance of the centres in the national legislation of EU Member States varies country per country

Categories of the detainees Differ depending on the national legislation but several categories could be identified: persons identified in the territory of a Member State; persons refused entry to the Member State concerned; persons who have entered the country illegally and have subsequently been identified by the authorities; persons whose authorisation to stay in the country has expired and they have not left the country voluntary ; asylum seekers waiting for the decision to be made in the Dublin II regulation procedure etc.; asylum seekers whose detention is considered necessary by the authorities, e.g. asylum seekers waiting for the decision to be made in the Dublin II regulation procedure etc.; rejected asylum seekers waiting for their expulsion.

Duration of detention No unified EU standards Depends on the national legislation: E.g. in France -up to 32 days, in Italy – 60 days, in Germany - up to 6 months (could be prolonged), in Belgium – 2 months (could be prolonged up to 5 months)etc. E.g. in France -up to 32 days, in Italy – 60 days, in Germany - up to 6 months (could be prolonged), in Belgium – 2 months (could be prolonged up to 5 months)etc.

Conclusions So far the development of the common EU detention standards for asylum seekers could be considered more or less completed, although the relevant EU Directives have not yet been transposed in the legislation of EU Member States The EU detention policy for illegal migrants is being developed but an agreement on a number of the above-mentioned issues (definitions, costs of procedures, reception standards, scope of the guarantees for illegal migrants etc.) needs to be reached in order to develop the common legal standards

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