The European Commission should focus on alternatives, not more immigration detention.
The IDC is deeply concerned that a new package on returns announced by the European Commission on 2 March is both misguided and harmful. The renewed action plan and set of recommendations seek to increase returns through enforcement-based measures including more and longer immigration detention. They have drawn widespread criticism from civil society organisations, and regional human rights bodies. .
Under pressure from Member States to achieve quick results, the Commission has opted for short term policy measures which are not supported by evidence and are likely to be counterproductive and self-defeating. The punitive approach and end of process focus on forced returns is likely to decrease not increase cooperation and compliance with immigration decisions, as well as respect for human rights.
Detention is not the solution
For example, the recommendation mistakenly assumes that more and longer detention will assist returns, whereas evidence points to the opposite. In fact, international research finds that immigration detention discourages cooperation and decreases the motivation and ability of individuals to contribute to case resolution. The Commission itself has acknowledged that an “overly repressive system with systematic detention may also be inefficient, since the returnee has little incentive or encouragement to co-operate in the return procedure.”
Detention does not deter
According to Commissioner Avramopoulos, the policy further seeks to “send a strong signal against taking dangerous irregular journeys to the EU in the first place”. Describing the recommendation as a “slippery slope” a group of UN Experts pointed out, however, that “There is no empirical evidence that detention deters irregular migration or discourages persons from seeking asylum. Despite increasingly tough detention policies being introduced over the past 20 years around the world, the number of irregular arrivals has not decreased”. This is backed up by IDC’s own research, which finds detention is not only ineffective at reducing irregular migration to desired levels, but also weakens other migration management outcomes such as case resolution, departure for refused cases and integration for approved cases.
Subordinating rights to returns
Despite the numerous references in the package to being “fully compliant” with human rights, the proposals effectively subordinate human rights to the policy goal of increasing returns. The standards that are set in the proposals bring the level of safeguards to the absolute minimum and even encourage Member States with higher levels of protection (such as in the case of time limits on detention) to weaken them.
Child immigration detention
A key concern is that the recommendation discourages Member States to adopt laws and policies that would prohibit the practice of child immigration detention, and reinforces the view that States should continue to detain children and families “as a last resort” to effectuate returns “when no alternatives exist”.
This clearly goes against a growing body of international law that children should never be detained for migration reasons as it is never in their best interests. Furthermore, it directly contradicts guidance from the Council of Europe and the UN Committee on the Rights of the Child, who have called child immigration a clear child rights violation because there are always available alternatives to detaining children. Instead, they have urged States to “expeditiously and completely cease” the immigration detention of children and families.
EU governments seemed positively headed in this direction when they committed to work to end child immigration detention as part of the New York Declaration, adopted by the UN General Assembly on 19 September 2016. As UN and child rights organisations point out there are multiple other examples where the policy puts children at risk of harm.
The realities of immigration detention
The risk is that EU Member States will see the recommendation as a green light to use more immigration detention, including for children, with all the harm and suffering this entails. Although the policy makes reference to the principle of detention as a last resort, it ignores the reality that governments still frequently use to detention when it is unnecessary (because effective and more humane alternatives are available). Furthermore in some countries detention is clearly being used as a policy tool to criminalize and punish irregular migration, within the context of growing populism and xenophobic discourse in Europe and abroad.
Focus on alternatives not detention
As guardian of the EU Treaties, the Commission has a responsibility to uphold the highest standards and ensure the rights and dignity of all individuals regardless of migration status, in line with the Charter of Fundamental Rights. The Commission should develop sustainable policies which are proven to uphold EU standards including that immigration detention should only be used exceptionally and as a measure of last resort. Rather than encouraging and promoting even greater use of immigration detention, the Commission should encourage Member States, through practical guidance and funding, to develop effective alternatives which support fair and timely case resolution, as part of rights and welfare-based systems of migration governance.
“European states should shift the focus from detention to alternative and more humane measures” said the Human Rights Commissioner of the Council of Europe.
There is strong evidence that the most effective alternatives are based on engagement rather than enforcement: they use holistic and tailored case management to support migrants to engage with immigration processes. By building trust with and empowering individuals, linking them to additional support mechanisms and services, and ensuring they are fully informed and can meet their basic welfare needs, these alternatives produce better outcomes for governments and the individuals involved. Such ATD achieve high rates of compliance and case resolution, better ensure the rights and wellbeing of individuals, and are far cheaper than detention.
The Commission should therefore build on its recommendation in the Return Handbook for states to develop ATD which empower individuals through “tailored individual coaching” on all migration options for all returnees (including before a decision on forced return). Governments often lack expertise in case management and ATD and may resort to detention because it seems easier and more tangible – the Commission’s assistance here is therefore crucial.
Civil society in the region has strong expertise in case management and there is a growing evidence base with a number of NGO-led ATD being developed in Europe this year. The IDC stands ready to provide input and assistance to the Commission on the practical implementation of effective ATD.