The Advocate General of the Court of Justice of the European Union has issued an opinion relating to when migrants can be detained in prisons in the EU. The opinion relates to three cases referred to the Court of Justice by German courts. The question in the first two cases is whether states within a Federal state can detain migrants in prison, when they have no dedicated immigration detention facilities. The third case relates to whether detention of migrants in prisons can be justified when the person has consented to it. The Advocate General provided the opinion that the detention of migrants in prisons would be in breach of EU law in both cases.

“Taken as a whole, the Advocate-General’s opinion neatly brings together excellent arguments about the literal interpretation of the Directive with an appreciation of what a humane interpretation of the Directive would suggest. Although Advocate-General Bot has a reputation for taking a strict view in cases involving convicted criminals, his Opinion in this case shows that he has a very clear understanding of the importance of the difference between convicted criminals and migrants who have committed no crime (leaving aside immigration offences). His analysis certainly ought to be followed by the CJEU”, said Professor Steve Peers on his blog on EU law.

International standards are clear that detention of migrants on the ground of their immigration status should never be punitive in nature and should not take place in prisons. The Human Rights Committee has stated this in its case law as well as in its draft General Comment 35. It is also the position of a number of other bodies, including the UN Special Rapporteur on the Human Rights of Migrants (SRHRM), the UN Working Group on Arbitrary Detention and the European Committee on the Prevention of Torture (CPT).