1. A Critical Overview of the Immigration Detention Practice in 5 EU Member States – A Comparative Perspective Daphné Bouteillet-Paquet, Ph D. La Sorbonne International Expert, Odysseus Network ULB Project “Steps to Freedom” Project co-funded by the European Refugee Fund

2. The sole responsibility for the content of this presentation lies with the author. The Commission is not be responsible for any use that may be made of the information contained therein. 2

3. OVERALL PRESENTATION 1. Presentation of the objectives and methodology of the synthesis report 2. Presentation of the key findings with regards to the legal framework and procedural safeguards in the selected EU Member States 3. Presentation of the final recommendations – the 7 steps to freedom 3

4. I. Overall presentation of the research 1.Scope – Czech Republic, Estonia, Latvia, Lithuania and Slovakia; 2. Critical analysis of immigration detention legislation and practice vis-à-vis asylum seekers, incl. failed asylum seekers in light of EU acquis and international legal standards; 3. State of play with regards to development and implementation of alternative measures to detention. 4

5. Policy recommendations UNHCR- OCHR Global Round Table on Alternatives to Detention of Asylum Seekers, Migrants and Stateless Persons, 11-12 May 2011; EU Fundamental Rights Agency November 2010 Report ; JRS Report Becoming Vulnerable in Detention, IDC, There Are Alternatives – A Handbook for Preventing Unnecessary Immigration Detention, 2011. 5

6. Methodological issues Desk research and interviews conducted from July 2010 till October 2011; Monitoring of reception and detention places accross the selected countries, including border crossing points and airport facilities; Complexity of the domestic legal landscape and the recent changes with transposition of relevant EC directives; constant evolution of the EU acquis. 6

7. II. Presentation of the key findings 1. Pre-entry detention 2. Pre-removal detention 3. Detention of vulnerable groups 4. Procedural safeguards against arbitrary detention 5. Access to an effective remedy 6. Length of detention 7. Alternative measures to detention 7

8. 1. Issues with regards to pre- entry detention Article 31.1 Geneva Convention 1999 UNHCR Revised Guidelines → Non-penalization clause → Legal presumption against the detention of asylum seekers → Detention shall only be a measure of last resort 8

9. 1999 UNHCR Revised Guidelines on Detention i ) Cases in which identity is undetermined or in dispute; ii) Preliminary interview; iii) Cases where there is an intention to mislead the authorities; iv) Cases where there is evidence to show that the asylum- seeker has criminal antecedents and/or affiliations likely to pose a risk to public order/national security 9

10. EC standards Presumption against detention of asylum seekers reflected in the EC acquis: →Art. 5 and 13 of the Schengen Borders Code; → Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status.. 10

11. Comparative overview in the selected States → Detention of asylum seekers authorized by legislation in Czech Republic and Latvia – potential breach of the non-penalisation clause → Inadequate practice in Slovakia, Estonia and Lithunia with regards to limited cases (Dublin II, manifestly unfounded cases, breach of regulations of the reception centres, courts’ practice) 11

12. 2. Issues with regards to pre-removal detention → Abundant ECtHR caselaw: Saadi vs UK, applic. n° 13229/03 29 January 2008 Auad vs Bulgaria, applic. n° 46390/10 11 October 2011 → Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third country nationals 12

13. Comparative overview in the selected States → State of play of the transposition of EC Directive 2008/115/EC – complexity of the legal landscape → Principle of voluntary returns – poorly reflected → Lack of indicators to establish the necessity and proportionality of detention measures 13

14. Bechmarks for developing detention indicators UKBA Enforcement Instructions and Guidance: → Likelihood of the removal ; Evidence of previous absconding or previous failure to comply with conditions of temporary release or bail; → History of breach/compliance of the immigration regulations; → Personal ties with the UK and expectations with regards to the outcome of the case; → Personal history; age, gender and vulnerability 14

15. 3. Issues with regards to detention of vulnerable groups Prohibition of child detention : - Guideline 5 of the 1999 UNHCR Revised Guidelines ; - Parliamentary Assembly, Resolution on the detention of asylum seekers and irregular migrants in Europe, Committee on Migration, Returns and Population, 11 January 2010, document 12105 15

16. ECtHR standards No explicit prohibition but strict safeguards to be applied: - ECtHR, Mubilanzila Mayeke and Kaniki Mitunga vs Belgium, application n° 13178/03, 12 October 2006; - ECtHR, Muskhadzhiyeva and others vs Belgium, application n° 41442/07 19 January 2010 16

17. EC standards – towards a presumption against child detention? - Articles 3.9, 16 and 17 Directive 2008/115/EC - Communication from the Commission to the Council and the European parliament, Action Plan on Unaccompanied Minors, COM (2010) 213 final, 6 May 2010 - Amended proposal for a Directive of the European Parliament and of the Council laying down standards for the reception of asylum seekers, COM (2011) 320 final, 2008/0244 (COD) 17

18. Comparative overview in the selected States → Lack of adequate legislation in Estonia → Lack of adequate practice in the Czech Republic, Latvia → Good practice in Lithuania 18

19. Benchmarks for improving current practice with regards to age assessment - Committee on the Rights of the Child, General Comment No. 6 (2005), U.N. Doc. CRC/GC/2005/6, para.7. - United Nations High Commissioner for Refugees, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum, February 1997, para. 5.11. 19

20. Benchmarks for developing vulnerability indicators → UNODC and UN. GIFT, Anti-Human Trafficking Manual for Criminal Justice Practitioners, 2009 available at :www.unodc.orgwww.unodc.org → Development of referral mechanisms VoT → Training tools 20

21. 4. Procedural safeguards against arbitrary detention → Recent improvements to be noted with introduction of new pieces of legislation and reports of international monitoring bodies → Yet, improvements are required with regards to access to adequate information, access to asylum procedure in detention, the sustainability and availability of legal assistance. 21

22. Access to information related to detention According to the Article 5.2 ECHR and 9 ICCPR, there is a right of detainee to be ‘promptly’ informed of the reasons for detention Reflected in EC law Articles 12-13 of the Directive 2008/115/EC and Article 5 of the Directive 2003/9/EC 22

23. Comparative overview in the selected States → Good practice in Estonia and in the Czech Republic (regular procedure) → Lack of legal provisions in Lithuania → Inadequate implementaton in Latvia → Lack of adequate interpretation and translation services in particular for rare languages in most countries 23

24. Access to information related to the asylum procedure → Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status. → Good practice in Estonia, in the Czech Republic (regular procedure) and in Slovakia; → Ad hoc practice in Latvia; Lithuania MOU June 2010 24

25. Access to Legal assistance → EC standards more advanced than ECtHR case law → Access to legal assistance both with regards to pre-entry detention Articles 15 and 16 of the Directive 2005/85/EC → Pre-removal detention – Article 13.4 of the Directive 2008/115/EC 25

26. Comparative overview in the selected States’ → Good practice in the Czech Republic and in Slovakia → Lack of adequate practice in 3 countries: Restrictive interpretation of EC standards in Lithuania; recent access in Estonia; issues with regards to sustainability of the legal assistance in Latvia 26

27. Benchmarks for improving current practice → Improve access to legal assistance a dialogue with civil society organizations as well as bar associations → Improve quality of legal assistance needs to be improved through adequate trainings → Seek technical assistance from EU institutions and agencies to pull out common resources with regards to interpretation and translation 27

28. 5. Issues with regards to Access to an effective remedy Access to judicial review is granted in all the countries of concern. However, → Lack of adequate periodic review in Latvia and in the Czech Republic → Lack of speedy and prompt judicial review in Slovakia →Lack of adequate proprtionality and necessity test 28

29. 6. Maximum length of detention → Except for Lithuania, all the countries have introduced a maximum length of detention in line with Article 15.5 of the Directive 2008/115/EC → Maximum ceiling is 6 months with exceptional 12 months prologation if there is a lack of cooperation on behalf of the individual or delays in obtaining documentation 29

30. ECtHR, Auad vs Bulgaria, applic. n°31465/08 “Compliance with the [6 month time-limit], (…), cannot automatically be regarded as bringing the applicant’s detention into line with Article 5 § 1 (f) of the Convention. As noted above, the relevant test under that provision is rather whether the deportation proceedings have been prosecuted with due diligence, which can only be established on the basis of the particular facts of the case.” 30

31. 7. Alternatives to Detention The synthesis report includes provisional conclusions as there has been so far a very limited use of A2Ds in the selected countries: → PB of A2Ds granted for humanitarian reasons in Latvia →PB of income + adequate accomodation requirements in Lithuania → Ill-defined notion of « serious risk of absconding » in Czech Republic and in Slovakia 31

32. Recommendations for further developing A2Ds Step-by-step approach Study visits and assessment of existing A2Ds in other EU Member States Development of a pilote-program for a special category such as families with children Individual case management Transparent and independent assessment of the pilot Adequate statistical tool to colect both qualitatve and quantitative information 32

33. III. Final 7 Recommendations 1. Strengthen the legal presumption against detention ; 2. Adopt a list of indicators assessing the necessity and proportionality of detention measures ; 3. Detention of vulnerable persons shall be avoided; 4. Further strengthen procedural safeguards against arbitrary detention: 33

34. (bis) 5. Strengthen access to an effective remedy 6. Strictly limit the duration of detention 7. Strengthen the implementation of alternatives to detention through pilot-projects 34

35. Thank you ! 35