Europe

The important task of codifying existing international standards has been entrusted by CDCJ to a Committee of experts established under its authority: the Committee of experts on administrative detention of migrants (CJ-DAM).

The elaboration of the draft codifying instrument started in May 2016 and is expected to be completed in 2018.

Over 30 national, regional and international civil society organisations submitted a joint statement, to the European Committee on Legal Co-operation (CDCJ) who is carrying out a codifying exercise on a detailed set of immigration detention rules based on existing international and regional human rights standards relating to the conditions of detention of migrants.

IDC Members and partners expressed their collective concern that, “A Fundamentally Different Approach is Needed” to the immigration detention of migrants in Europe.

The statement was presented during a consultation with key civil society stakeholders from 22-23 June 2017 at the Council of Europe Headquarters in Strasbourg. We welcome you to share this joint statement among your networks.

After the consultation, the IDC and the International Commission of Jurists  have presented their joint observations on the draft European rules for the administrative detention of migrants.
In their submissions, the two human rights organisations noted that the current detention practices in most Council of Europe member States raise serious questions as to their compatibility with human rights law.

They stressed that, under international human rights law, immigration detention must always be an exceptional measure of last resort in full respect of the norms of necessity, proportionality and non-discrimination.

The ICJ and IDC expressed concern that the current draft document fails to adequately distinguish between criminal and administrative immigration detention regimes.

In doing so, the document risks normalising unlawful detention practices and codifying prison standards that are wholly inappropriate in the context of migration.

The two organisations submitted that, as a general rule, persons in situations of particular vulnerability should never be detained merely for the purposes of enforcing immigration control.

Finally they called on the drafting Committee to prioritise alternatives to detention.

If you have questions about these European Rules or would like to learn more, please contact: [email protected]

Participants at the peer exchange workshop in Sofia, June, 2017

What do we mean by case management as an alternative to detention? How can we engage clients to actively participate in the process? These were some of the questions considered by the case managers of the European ATD Network, at a peer exchange workshop in Sofia last month.

“When we work with clients, we build up their confidence over time: gaining their trust, showing that we can provide credible information and advice and that there are benefits for them in staying engaged with the process”, said Dilyana Giteva, lawyer and case manager at the Bulgarian Lawyers for Human Rights. Their joint pilot project with Centre for Legal Aid – Voice in Bulgaria has been running since the beginning of this year, working with 25 clients to date.

 Participants at the peer exchange workshop in Sofia, June, 2017

An innovative strategy for reducing detention

Engaging and empowering migrants through individualized case management are the core elements of the four pilot projects in the European ATD Network, providing alternatives to immigration detention in Bulgaria, Cyprus, Poland and the UK.

But many NGOs provide case work to migrants, what is new about this approach? These projects have an innovative strategy with a two-fold aim:

• Delivering quality support and services to migrants based on their individual needs, so that their cases can be resolved in the community without the use of immigration detention
• Utilising the results of everyday casework to strengthen national and EU-level advocacy efforts aimed at reducing immigration detention in policy and practice.

What do we mean by case management?

Case management is a structured process of service-delivery designed according to the needs of the clients, and is built on their active participation and empowerment. Based on mutual trust between the client and the case manager, the main focus is on increasing the overall well-being of the migrant and supporting their engagement in the process.

“Case management is about working with each person as a team” said Memnon Arestis, project coordinator in Future Worlds Center pilot project in Cyprus.

Vulnerabilities and protection needs could be identified by screening, assessing and active listening to the needs of the clients at the first phase as well as throughout the whole process. Case management is an active tool to strengthen resilience, to establish placement and support options while working towards case resolution. Willingness to engage and cooperate with migration processes is more likely to happen if people feel well-informed and that their basic needs are met.

The European ATD Network is already happening

Although most of the pilots are starting now, all of the four implementing organisations have long experience and expertise in providing assistance to migrants with multiple needs. The Network itself provides a platform for exchanging knowledge, discussing challenges, sharing practices and mutual support in order to gather evidence and to amplify the potential of case management-based alternatives to change detention policies both at the national and EU-level.

The European ATD Network is supported by EPIM.

Related Posts

A new network of NGOs piloting alternatives in Europe

A new network of European NGOs aims to reduce immigration detention by showing governments what works better in practice: not just by talking about it, but by actually doing it.

A new report on the “European legal and policy framework on immigration detention of children” has been launched by the EU Fundamental Rights Agency (FRA).

FRA held an Experts Meeting to discuss the issues raised in the report and to share good practices between states, which the Senior Child Rights Advisor of the International Detention Coalition (IDC), Melanie Teff, attended.

The meeting was attended by experts from EU meber States and Schengen Associated Countries representing immigration, child protection, guardianship and ombudsman authorities; EU institutions; international intergovernmental and non-governmental organisations.

The discussion focused on four main issues which were subject of dedicated working groups:

• the role of child protection authorities and the best interests of the child
• alternatives to detention for unaccompanied children
• alternatives to detention for families
• detention conditions.

The IDC presented at this Experts’ Meeting on its research findings on alternatives to detention from outside of Europe (giving examples from Australia, the USA, and Hong Kong), to promote discussion and thinking about key elements of successful alternatives to detention globally that are also relevant in the European context.

The IDC’s research findings highlight some key elements that are necessary for alternatives to detention to be successful in any context – such as engagement with the child/family through case management, a holistic approach that helps explore all of the child’s/family’s options (not only return), and ensuring that basic needs are met.

The IDC provided examples of families who decided to return voluntarily following engagement through holistic case management, as well as explaining the IDC’s Child-Sensitive Community Assessment & Placement (CCAP) Model.

The presentation of the European Alternatives to Detention Network (convened by IDC and PICUM and set up in March 2017) resulted in a lot of interest by the Expert Meeting participants, especially regarding how the network develops, as well as exploring in further detail at future meetings best models of case management.

In June a preparatory meeting was also held toward the first EU Guardianship Network, which is expected to be up and running starting in 2018.

A Court of Appeal in Norway has found twenty days’ detention of four children during deportation proceedings to be in violation of their fundamental rights. The underlying problems are addressed in a new law proposal but, despite some improvements, the proposal nevertheless opens up for practice that might easily breach the Constitution and international law.

On May 31 in 2017, the Borgarting Court of Appeal in Oslo found that detention of four children aged 7-14 during deportation proceedings in 2014 violated their fundamental rights. Before they were deported to Afghanistan, the children had been detained for twenty days with their parents in Norway’s immigration detention centre at Trandum. The judgment contains over 70 pages of thorough analysis of both facts and law, including the most recent jurisprudence from the European Court of Human Rights.

The Court found that the detention violated the Constitution, as well as the European Convention on Human Rights (ECHR) and the Convention on the Rights of the Child (CRC). Specifically, in regard to the entire family, the Court found a violation of Article 8 of the ECHR on the right to respect for private and family life. In regard to all four children, the court found violations of Article 3 of the ECHR on Inhuman or Degrading Treatment, of article 5(1) of the ECHR on the right to liberty, of Articles 3 and 37 of the CRC, of § 93(2) of the Constitution on Inhuman or Degrading Treatment and § 94(1)(2) of the Constitution on Deprivation of Liberty that constitutes a disproportionate interference. The decision is now final, as the state has decided not to appeal it further to the Supreme Court.

Several third parties intervened before the Court, including the UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, the UN Chair-Rapporteur on Arbitrary Detention, as well as the Norwegian Bar Association.

Inhumane

As pointed out by the Norwegian National Human Rights Institution in their article in Aftenposten, Norway’s largest newspaper, this is the first time a court has found Norway in violation of the prohibition against inhuman or degrading treatment in respect to children.

The Court of Appeal has assessed the facts of the case in light of the latest jurisprudence from the European Court of Human Rights, including five judgments from July 2016 against France. In all of these five cases, the Strasbourg Court found, among other violations, a violation of the prohibition against inhuman or degrading treatment, noting that children must not be detained for an extended period of time. The cases concerned detention of children of four months to four years for periods of seven to eighteen days at the detention centres at Metz-Queuleu and Toulouse-Cornebarrieu.

The Court of Appeal’s finding that the twenty days’ detention of the four children at the Norwegian centre at Trandum was inhuman does not seem particularly surprising, as the detention conditions at Trandum and at Toulouse-Cornebarrieu in France are quite similar. Both the Norwegian and the French centre have a relatively strict security regime and are operated by uniformed police, with a potential fear-inducing effect on children. Both are located close to an airport, causing noise from the air traffic. There is also other noise inside the centres, including from adults detained close to the family unit, who at times resort to self-harm or even riots, as has repeatedly happened in the Norwegian centre.

When children in addition witness their parents being extremely stressed and without control over the situation, their cognitive development can become irreversibly compromised. As highlighted in the report from March 2015 by the UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, studies have shown that, “regardless of the conditions in which children are held, detention has a profound and negative impact on child health and development. Even very short periods of detention can undermine the child’s psychological and physical well-being and compromise cognitive development”.

Unnecessary

The Court of Appeal was unconvinced that detention of the family beyond the first two days was strictly necessary to carry out the deportation, noting that the state’s apparent approach to assessing the necessity and proportionality of detention was flawed.

The state’s approach suggested that the requirements for detaining parents are to be assessed first, and the question of whether it is best for the children to be detained together with the parents is to be assessed sequentially thereafter. In the Court’s view, such approach is unacceptable, as this deprives the strict requirements for detention of children of their intended restrictive effect.

The correct approach, according to the Court, is to apply the Principle of Strict Necessity in respect to the entire family, taking into consideration the best interests of the child, while carefully assessing whether an alternative to detention is sufficient under the given circumstances.

Unsurprising

Although the appeal judgment might have come as a surprise to the National Police Immigration Service, which is responsible for managing the immigration detention centre and carrying out deportations, it confirms long-standing criticism by the civil society against detaining children at Trandum.

The Norwegian Organisation for Asylum Seekers (NOAS) identified and discussed the specific case at hand already in its report “Frihet først” (Freedom First) published in February 2015. The report argued that such examples constitute a violation of the ECHR and CRC as well as the Constitution, advocating for more serious consideration of alternatives to detention.

The Parliamentary Ombudsman visited the immigration detention centre at Trandum in May 2015 and concluded that the psychosocial environment for children did not appear satisfactory. The Ombudsman’s report was partly based on previous findings of the Norwegian Psychological Association’s Human Rights Committee, which found in 2014 that the centre must be considered as inappropriate for children.

New law proposal

In April 2017, the Government submitted to the Parliament a proposal to improve the domestic legal framework regulating immigration detention. Most notably, the new framework will address concerns over legal certainty of several crucial procedural safeguards. This is a long known issue, which was pointed out already in a 2012 report commissioned by the Ministry of Justice, and again in a 2014 NOAS’ report.

Disappointingly, the proposal does not foresee an absolute time limit on detention of children. Instead, the proposal will allow for initial detention of one day, which may thereafter be extended by court for three days and, if necessary, for additional three days. Thereafter, the court may extend detention for a further week at a time, provided there are “special and strong reasons” to do so.

The proposal specifies that the term special and strong reasons primarily includes situations where “the family or the child themselves bear substantial responsibility for deportation not been carried out within the first six days after the arrest, or if there is a clarified point in time for deportation which is near in time.” The proposal stresses that this specification is non-exhaustive.

The law proposal foresees construction of a new detention centre with a “more civilian character” for families with children. The Government believes that detention of children in such a specialised centre will allow for longer periods of detention, as suggested by the newly proposed 1+3+3+7+ model mentioned above. The centre is to be managed by the same police unit that runs the detention centre at Trandum, and it will allow for detention of up to three families at a time.

As pointed out by the Norwegian National Human Rights Institution, which enjoys an independent and autonomous position under the auspices of the parliament, it is hardly advisable to introduce legislation that balances on the very edge of what is allowed under Article 3 of the ECHR. This can easily lead to instances of courts reprimanding Norway for breaching the prohibition against inhuman treatment in respect to the most vulnerable in the society – again.

This article was written by Marek Linha, Advisor for the Norwegian Organisation for Asylum Seekers (NOAS) and IDC Regional Advisor for Northern Europe.

NB. This article was first published on the University of Oxford’s Border Criminologies Blog on the 5th of April 2017.

Guest post by Jerome Phelps, Director of Detention Action, a UK organisation that provides support and advice to migrants in immigration detention and campaigns for change. He designed and manages the Community Support Project, an innovative alternative to detention project for young migrant ex-offenders. He has written or co-written six influential Detention Action reports, including ‘Without Detention’ (2016), which sets out the opportunities for alternatives to detention in the UK. Jerome writes regularly on detention and migration issues, including for the New Internationalist, Huffington Post, Forced Migration Review and openDemocracy. He is the Western Europe contact of the International Detention Coalition.

In March 2017, the European Commission published new recommendations to Member States on returning refused asylum-seekers and irregular migrants. The pressure to make the EU’s returns policy ‘efficient and credible’ has led the Commission to urge states across the region to use the full scope of the enforcement powers available to them under EU law. The fear is that this will be interpreted as encouragement to increase both the numbers of migrants detained, and the periods of times that they are detained for. The recommendations demonstrate the scale of alarm at the EU’s failures to manage effectively irregular migration and return refused migrants. They are framed as primarily a response to one statistic: in 2015, the ‘return rate’ to third countries was a mere 36% – almost three times as many migrants were ordered to leave Europe as actually left.

Announcing the proposals, Commissioner for Migration Dimitris Avramopoulos promised that improved returns rates will ‘be a strong signal against undertaking dangerous irregular journeys to the EU in the first place’. The logic is clear: tough action on returns will not only reduce numbers of irregular migrants in Europe, it will send a message of deterrence to desperate migrants in Libya or Turkey considering getting on a boat. The difficulty for the Commission is that returning migrants is a complicated business, resistant to unilateral resolution by the EU. As the Commission recognises, many countries do not cooperate on readmission of their nationals. Improving their willingness to accept returns is a long-term matter of negotiating readmission agreements and, increasingly, tying aid to such cooperation. This is not a new idea, and the Commission has little new to say on how it will bring recalcitrant governments into line.

In any case, progress in implementation of the Partnership Framework is unlikely to have much traction on the streets of Tripoli and Izmir. In order to deter migration, a stronger message is seen to be required: detention.

The Commission urges States to bring their detention time limits into line with the maximum permitted under the Return Directive, eighteen months. Detention capacity is to be increased, ‘in line with actual needs’. States are vaguely exhorted to ‘use detention as needed and appropriate’. Most significantly, migrants are to be detained ‘where there is a risk of absconding’, or where they ‘show signs that they will not comply’ with return. The ‘appropriate’ use of detention seems to be not simply to enforce return, nor even to punish absconding or non-compliance, but as a preventative measure where migrants might not comply.

This could be seen to open the way to the speculative long-term detention of migrants who have never absconded, and for whom there is no imminent prospect of return. Such an approach would be unlawful under the Returns Directive, which requires that detention be used as a last resort – but the Commission darkly hints at a possible recast of the Returns Directive, if necessary.

In the view of the Council of Europe’s Commissioner for Human Rights, Nils Muiznieks, the recommendations are ‘likely to lead to human rights violations without furthering other goals, such as facilitating the processing of asylum claims or promoting dignified returns.’

The Commission presents no evidence that shorter maximum periods of detention are preventing returns. Indeed, there is no apparent correlation in the statistics between length of detention and numbers of returns. Filling detention centres with long-term unreturnable bed-blockers can actually reduce returns rates, unless Europe is willing to follow Hungary’s (illegal) strategy of detaining all asylum-seekers.

Indeed, the Italian Senate commission for human rights in 2014 found that 45 days were the average necessary to identify a migrant. If consular officials had not documented a migrant by then, further approaches were rarely successful. The result was that ‘the detainee would wait for months for a response that would never come before then being released with an expulsion order, after having been detained for an undefined period, without any justification.’ As a result of the commission’s report, the Italian government reduced the time limit from the 18 months allowed by the Returns Directive to three months, and closed many detention centres. However, in Italy too, the political pressure has since told.  At the end of 2016, the Italian Government announced ‘an extraordinary plan for control of the territory’, involving a quadrupling of the capacity of the detention estate to 1600 places in around 20 detention centres.

The UK is Europe’s test case for the effectiveness of long-term detention: uniquely in Europe, it has no time limit at all, having opted out of the Returns Directive. The UK achieves relatively high numbers of returns, compared to other European States. However, all the evidence suggests that this is due to having put greater energy into negotiating returns with third countries, rather than its greater use of detention.

As elsewhere, detention is a massively inefficient tool for enforcing returns. According to Home Office statistics, in 2015, less than 40% of migrants leaving detention after more than six months were removed. The great majority were simply released back into the community. Indeed, the Home Office has belatedly recognised that long-term detention is ineffective. In early 2016, following the scathing criticisms of a Parliamentary inquiry and the Home Secretary’s own Shaw Review, the then Minister James Brokenshire announced a programme of reforms which he expected would ‘lead to a reduction in the number of those detained, and the duration of detention before removal, in turn improving the welfare of those detained.’

Progress has been disappointing: two weeks ago the HM Chief Inspector of Prisons called for remedial action after finding 23 people detained for over a yearin Brook House detention centre alone. Last week, MPs from all major parties debated the Government’s failures to fulfil its promises. The SNP’s Anne McLoughlin MP memorably concluded the debate by observing that ‘The most soul-destroying thing about detention is the unlimited nature of it… and the most soul-destroying thing for campaigners is not knowing when the government will do as it promised’.

Nevertheless, there is no shortage of evidence of the likely ineffectiveness of detention in meeting the Commission’s objectives. Few European economies are sufficiently healthy to justify the luxury of pouring public money into so ineffectual an approach.

The political stakes may be simply too high for doing nothing to be an option. However, as the Commission recognises, detention is not the only option. Indeed, EU law requires the use of less coercive measures than detention whenever possible, leaving the Commission in the awkward position of promoting the use of detention whilst reminding States that it should only be used as a last resort. This requirement to consider alternatives to detention first provides the main opportunity to avert the slide towards detention. The opportunity is there, because mass long-term detention will not be effective in increasing returns, in Europe any more than in the UK. The injustice will make migrants resist, not cooperate. Only alternatives that treat migrants as human beings can encourage cooperation with immigration systems.

Detention Action’s recent report Without Detention sets out how community-based alternatives, supporting migrants to live with dignity in the community while they resolve their cases, can meet the needs both of migrants and of States. Sweden has already made a success of this approach, detaining around a tenth as many migrants as the UK, and overwhelmingly relying on voluntary returns. Around Europe, a series of small NGO pilots, including  a Detention Action project that manages the reintegration into the community of young ex-offender migrants who cannot be deported, are demonstrating the scope for Europe to improve its management of migration not by building more detention centres, but by engaging with migrants as human beings.

The political stakes are high. The developments of the last year, including the EU – Turkey deal and the mass holding of migrants in hotspots on the Greek and Italian coasts, demonstrate the limitations of calls for European values. The EU may see its management of the ‘refugee crisis’ as an existential threat. But resort to mass detention will be a sign of helplessness, not strength.

The European Network on Statelessness (ENS) has released a new report: Protecting Stateless Persons from Arbitrary Detention: An Agenda for Change.

The report highlights the fact that stateless people are often detained for months and even years, without any real prospect of their cases being resolved. It analyses procedures that can assist to identify those who are left without nationality and strengthen protection of stateless people.

It makes five practical recommendations to pave a way forward for states. Their first recommendation is for states to implement a range of alternatives to detention in line with international standards and good practice.

ENS is a civil society network, with members across Europe who advocate for all human beings to have a right to a nationality and that those who lack nationality altogether are entitled to adequate protection.

The IDC is one of many organisations who have signed a joint call for Europe’s leaders to end immigration detention of people who are stateless.

Find out more about the experiences of people who are stateless and detained in this moving multimedia piece by Greg Constantine.