The legal framework on alternatives to immigration detention Alice BLOOMFIELD-Lilian TSOURDI...

The legal framework on alternatives to immigration detention

Alice BLOOMFIELD-Lilian TSOURDIAcademic Network for legal studies on asylum and immigration in Europe (Odysseus Network)

‘IDC Regional Workshop 2014, Brussels’

What is the Made Real ProjectAn academic/NGO partnership: To address the knowledge and implementation gaps concerning

alternatives to detention (ATD) for asylum seekers in the EU; to assist Member States in the transposition of the recast Reception

Conditions Directive; to enhance the use of alternatives to detention in compliance with EU

and international legal standards.

How? Research activities in Austria, Belgium, Lithuania, Slovenia, Sweden and

UK; Trainings on ATD in 7 EU Member states: Bulgaria, France, Greece,

Hungary, Malta, the Netherlands & Slovakia; A synthesis report and a training module on the basis of the findings Advocacy & communication at national & EU level.

Odysseus Academic Network

2

In the 1st phase (research): Austria, Belgium, Lithuania, Slovenia, Sweden

and UK.

In the 2nd phase (training): Bulgaria,

France, Greece, Hungary, Malta, the

Netherlands and Slovakia.

In the 1st phase (research): Austria, Belgium, Lithuania, Slovenia, Sweden

and UK.

In the 2nd phase (training): Bulgaria,

France, Greece, Hungary, Malta, the

Netherlands and Slovakia.

Where are we at? The practices and legal questionnaire have now been

completed. Questionnaires cover the national legal framework on detention and ATD, access to remedies and national jurisprudence, the functioning of existing ATD, access to rights, cost effectiveness and evaluation mechanisms.

Research visits by coordination team are ongoing.

The 1st reference group in Budapest in January 2014 looked into the methodology and content of the training module.


Alice Bloomfield & Lilian Tsourdi

4

Some questions we will seek to address…

What is an “alternative to detention” from a legal

perspective?

What are the obligations for states to apply ATD?

How are alternatives to detention applied in practice?

How do ATD currently applied conform to fundamental

rights?


Alice Bloomfield & Lilian Tsourdi 5

European framework: Overview

Art. 5 ECHR: detention as an exception:

exhaustive list of grounds among which: “prevent an unauthorised entry” or “action is being taken with a view to deportation or extradition”;

“in accordance with a procedure prescribed by law”;

individualised assessment (ECtHR case-law);

set of procedural guarantees;

no necessity test; if necessity under national law failure to meet the necessity test will render the detention arbitrary (case of all EU MS).



6

European framework: Focus on alternatives

Key principle: detention shall not be arbitrary:

carried out in good faith;

it must be closely connected to the purpose of preventing unauthorised entry;

the place and conditions of detention should be appropriate;

the length of the detention should not exceed that reasonably required for the purpose pursued.

If arbitrariness→ States must not detain or they must apply alternatives



7

European framework: Focus on alternatives

Asylum seekers as a particularly underprivileged and vulnerable population group in need of special protection (M.S.S. v. Belgium and Greece)

Factor of specific significance for violation of Art. 3 while in detention (S.D. v. Greece)

Detention was found arbitrary in cases dealing with immigration-related detention of children (Muskhadzhiyeva and others v. Belgium)

Detention was found arbitrary in cases of victims of torture and persons with mental health problems (Aden v. Malta)



8

EU framework: Overview

“Immigration detention” under EU law is regulated by

two distinct legal instruments

Detention of asylum seekers →RCD [Directive

2003/9/CE; recast Directive 2013/33/EU]

Detention of those issued with a return decision →RD

[Directive 2008/115/EC]



9

EU framework: I. Asylum

Detailed regulation in 2013 RRCD (Arts 8-11)

Certain positive developments:

1. obligation to apply a necessity and proportionality test (Art. 8§2)

2. alternatives have to be developed and considered (Art.8§4)

3. exhaustive list of detention grounds (Art. 8§3)

4. timeframe: “as short a period as possible” (Art. 9§1)

5. set of procedural guarantees (Art. 9)



10


Elements of concern:

1. broadly defined grounds for detention, (Art. 8§3):

“in order to determine or verify identity or nationality”;

determining elements of the application (esp. if risk of absconding)

in order to decide, on the applicant’s right to enter the territory

asylum applications in return procedure

national security or public order

Dublin procedure (significant risk of absconding)



11


Elements of concern (cont.):

2. detention of asylum seekers in prison accommodation; (Art. 10 para 1)

3. very weak standards for vulnerable A/S “when in detention their health/mental health shall be of primary concern; regular monitoring and adequate support should be provided”; (Art. 11 para 1)

4. no clear-cut exemption of unaccompanied children, detention permissible “in exceptional circumstances” (Art. 11 para 3)



12


Focus: Alternatives to detention in the recast RCD

Explicit obligation to consider less coercive alternative measures

Rules concerning alternative schemes shall be established in national legislation

A non-exhaustive list of schemes: regular reporting to the authorities, the deposit of a financial guarantee, or an obligation to stay at an assigned place

Alternatives= “non-custodial”; must respect the fundamental human rights of applicants



13

EU framework: II. Return

Directive 2008/115/EC: detailed regulation of the detention regime

Positive elements:

obligation to apply a necessity and proportionality test (Art. 15 para 1)

alternatives have to considered (Art. 15 para 1)

exhaustive list of detention grounds (risk of absconding or avoiding or hampering return (Art. 15 para 1)

timeframe: “as short a period as possible” and “due diligence” requirement (Art. 15 para 1)

set of procedural guarantees (Art. 15 paras. 2-4)



14


Directive 2008/115/EC: detailed regulation of the detention regime

Elements of concern:

however: detention can go up to 18 months if lack of cooperation or delays in obtaining the necessary documentation (Art. 15 para 6)

weak guarantees for vulnerable groups “Particular attention shall be paid to the situation of vulnerable persons. Emergency health care and essential treatment of illness shall be provided” (Art. 16 para 3)

no clear-cut exemption of unaccompanied children (Art. 17 para 1)



15


Focus: Alternatives to detention in the Returns directive

Detention as the exception (only if less coercive measures cannot be applied effectively)

No clear obligation to establish rules in national legislation, thus administrative practice would be enough

No explicit examples of alternatives to detention in the form of an open-ended list

No explicit provision of respect of fundamental rights (however general human rights clauses apply)



16



17

Questions and remarks

Thank you very much for your attention !

[email protected]

[email protected]



18

General principles:

Freedom of movement as principle, detention as an exception

Detention should not be arbitrary

Grounds for detention

Application of the principles of necessity and proportionality as part of an individualized assessment

Elements to take into account: vulnerability, personal circumstances (ties, past history of cooperation or non-cooperation)

On this basis: freedom of movement or less-coercive measures (alternatives) and detention as a last resort

As alternatives contain restrictions preference for less coercive alternative

The legal framework on alternatives to immigration detention Alice BLOOMFIELD-Lilian TSOURDI...

Documents

Transcript of The legal framework on alternatives to immigration detention Alice BLOOMFIELD-Lilian TSOURDI...