Report for the European Parliament Directorate General Internal

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Report for the European Parliament Directorate General Internal


    Immigration and Integration

    DG Internal Policies of the Union, Directorate C Citizens’ rights and Constitutional








    By Elspeth Guild


    EXECUTIVE SUMMARY ................................................................................................................ i INTRODUCTION ............................................................................................................................. 1

     1. WHICH LAWS GOVERN THE IMPLEMENTATION OF CENTRES? ................................... 1

    2. WHO IS PLACED IN THESE CENTRES? .............................................................................. 4 3. WHAT TYPES OF CENTRES ARE MISSING? ...................................................................... 6 4. RECOMMENDATIONS .......................................................................................................... 6 ANNEX 1. DETENTION CENTRES IN THE MEMBER STATES .................................................. 7 BIBLIOGRAPHY ........................................................................................................................... 10


    There has been an increase in the use of detention of foreigners in EU Member States over 1the past four years. The sources and political discussion regarding this change of policy has given rise to substantial concern in civil society. Researchers, policy makers and non-governmental organisations have expressed concern at the stigmatisation of foreigners which accompanies and is expressed in their detention. The European Parliament itself has already commissioned and received a detailed report on the return of foreigners from EU Member States (Hailbronner: 2005) which includes substantial information on this issue. In this paper we seek to examine three issues around the detention of foreigners in the EU: the law that governs camps; who is found in the camps; and what types of camps are missing. The starting place of this examination is the law of the European Union what are the

    parameters within which national law applies and how does national law comply with those parameters.

     1 Intrand & Perrouty (2005).





    Elspeth Guild


    The detention of foreigners is closely associated with two policy concerns of Member States: first the treatment of asylum-seekers whose applications have been rejected either after a full consideration of their applications or on formal grounds (such as the Dublin II regulation); secondly, the treatment of foreigners irregularly on the territory of the Member States. The two concerns are related in that in many jurisdictions, asylum-seekers whose applications have been rejected are classified as foreigners irregularly on the territory of the Member States. Indeed, this category may well include a majority of such persons, though this is not clear and there do not appear to be any official comparable statistics on the matter among the Member States. Further, persons who are irregularly on the territory of the Member States are presented, in the policy making of a number of Member States, as persons likely to „abuse‟ the asylum system by making „late‟ claims for asylum on their

    detection by the national authorities. This essay will not consider the asylum laws of the Member States nor the EU measures that are being adopted in pursuit of the common European asylum system. We will focus here on detention of foreigners, the places and the law surrounding detention.

    One complicating feature of detention of foreigners is the intersection of administrative and criminal law. As an increasing number of Member States have adopted laws which criminalise undocumented entry and presence on the territory, foreigners who are found in such positions are detained, charged, convicted and sentenced to further detention on the basis of criminal law. Administrative detention, that is detention without the sanction of criminal law, remains important and is the focus of this essay. An analysis of the criminal law of the Member States on the detention of persons following and in compliance with sentencing has been dealt with to some extent in the European Commission‟s Consultation

    Paper: Procedural safeguards for suspects and defendants in criminal proceedings.

    Another field of concern of the EU which has direct consequences in the field of detention are the measures to combat trafficking in persons. Under this rubric further criminal offences have been created which result in the detention of foreigners. The emphasis on combating trafficking has also had the consequence of encouraging the allocation of resources to tracking foreigners irregularly present on the territory, the simplest category of trafficked persons to address.


    The EC Treaty does not contain any provisions on the detention of foreigners. The draft Constitutional Treaty does not propose the addition of any new provisions as regards detention of foreigners. The Treaty on European Union provides in Article 29 for the development of common action in the fields of police and judicial cooperation in criminal matters and the prevention of trafficking in persons. Thus at the present time EU law does not directly address the question of detention of foreigners. However, EC law does regulate the administrative detention of foreigners who are nationals of the Member States and thus citizens of the Union. As regards such a foreigner, a French national in the Netherlands who, in so far as he was exercising rights under the Treaty and thus came within the material


    scope of EC law was doing so either as a citizen of the Union or a service recipient under Article 49 EC, the European Court of Justice held “detention and deportation based solely

    on the failure of the person concerned to comply with legal formalities concerning the monitoring of aliens impair the very substance of the right of residence directly conferred by Community law and are manifestly disproportionate to the seriousness of the 2infringement.”

    The only EC secondary legislation which addresses the issue of detention so far is the 3Reception Conditions Directive applying to asylum seekers. Article 7 entitled residence

    and freedom of movement, sets as the principle that asylum seekers may move freely within the territory of the Member States or within an area assigned to them. Further “when it proves necessary, for example for legal reasons or reasons of public order, Member States may confine an applicant to a particular place in accordance with national law.”

    Thus the starting place as regards an analysis of the law applicable to all the Member States governing the implementation of detention centres is in other international instruments applicable to all Member States and which must be respected by them as part of EU law. This leads directly to the European Convention on Human Rights. Regarding the intersection of EU law and the ECHR, there has been much written which does not need to be repeated here. Suffice it to note that Article 6(2) TEU provides that “The Union [including the European Community] shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms …

    and as they result from the constitutional traditions common to the Member States…”

    The power to detain foreigners under the ECHR is specified in Article 5(1) “No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … (f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” Unless these conditions are met, the individual‟s 4detention will be unlawful under the ECHR. The European Court of Human Rights (ECtHR)

    has held as regards this aspect “Considering whether the applicant‟s detention was "lawful" for the purposes of Article 5 ? 1, the Court noted that [the applicable national law] provided for the detention of an alien on condition that the execution of an administrative order for expulsion taken by the Minister of Public Order was pending, and that the alien was considered to be a danger to public order or might abscond. However, the applicant‟s expulsion was a judicial and not an administrative decision and the applicant was not 5considered a danger to public order or likely to abscond.” The Member State, Greece, was

    held in violation of Article 5(1).

    Regarding the implementation of places of detention (i.e. camps) the key law which applies to all the Member States is Article 3 ECHR, the duty of states to protection the individual 6from torture inhuman or degrading treatment or punishment, in conjunction with Article 5,

    the right of the individual to challenge the lawfulness of the detention. Regarding Article 3 and the detention of foreigners, the ECtHR held in respect of a foreigner detained on account of his irregular presence in Greece: “In the light of the above, the Court considered that the

     2 C-215/03 Oulane, European Court of Justice, 17 February 2005. 3 Directive 2003/9 laying down the minimum standards for the reception of asylum seekers. The European Parliament proposed amendments to the Asylum Procedures Directive to expressly limit detention but the proposals were rejected by the Council. 4 See for instance the decision of the European Court of Human Rights (ECtHR), Conka v Belgium, no. 51564/99, 5 February 2002. 5 Dougoz v. Greece, European Court of Human Rights, 6 March 2001 6 Which is also found in the EU Charter of Fundamental Rights.


    conditions of detention of the applicant in the Alexandras Police Headquarters and the Drapetsona detention centre, in particular the serious overcrowding and absence of sleeping facilities, combined with the inordinate length of his detention, amounted to degrading 7treatment contrary to Article 3.”

    Thus the law which applies to all Member States regarding the implementation of detention in camps consists of two distinct parts: first: detention is prima facie contrary to the principle of liberty of the person and must be justified on the basis of Article 5(1) ECHR; secondly, the conditions of detention must not constitute torture, inhuman or degrading treatment as prohibited by Article 3 ECHR and interpreted by the ECtHR.

    Turning then to the national level, the legal provisions on the places of detention of foreigners may be found in a variety of different acts and measures. There are three key determining criteria as to where these provisions are found:

    First, is the detention carried out on the basis of criminal law and within the criminal law structures or administrative law? Where the legal framework regarding the operation of the place of detention depends on the criminal law of the Member State it provides a strong legal framework regarding the conditions of detention as these will apply also to nationals of the state. Where detention is carried out on the basis of administrative law, foreigners are detained separately from nationals of the state and the regime may be operated by a variety of 8different actors, such as private companies (the UK) or the military (Malta). The legal

    regimes of places of detention (civil: criminal/administrative, military) are not mutually exclusive and often apply concurrently to different types of detention within one state. Secondly, under the national legislation, are the places of detention open or closed? They are considered to be open when the individuals who are required to reside there are able to leave at will or within reasonable confines. These camps are more frequently referred to as reception centres and are among those foreseen in the reception conditions directive. Less concern has been expressed about this type of centre than in respect of those which are closed. The legal framework for this type of camp is most often found around asylum laws and 9provisions. Closed detention is where the individual required to reside there is not permitted to leave the confines of the camp at will. This type of camp is clearly covered by Article 5 ECHR as it is prima facie a restraint on liberty of the person. It is for the state to justify the restraint on the basis of the permissible grounds of detention.

    Thirdly, what are the control mechanisms in respect of places of detention? The regulation of the lawfulness of detention takes place primarily in three ways through challenge by the

    individual detained (including here NGOs which may act on behalf of or in place of the detained individual) (e.g. UK), through continuous monitoring by an appointed judge (e.g. Germany) or through an established monitoring mechanism with responsibility for visiting and reporting on the conditions of detention. Applications for habeas corpus or bail are the main ways of challenging detention and in relation to which the legality of detention is established. Monitoring of detention centres by specialised agencies, parliamentary representatives and NGOs is also a critical control mechanism regarding the nature and operation of camps. The mechanisms of control constitute one of the important ways of determining the situation of foreigners in the camp and structuring the legality of the camp.

     7 Dougoz v. Greece, European Court of Human Rights, 6 March 2001. 8 The camp at Sangatte, France, (closed by the French authorities in 2002) presented a rather sui generis form of camp as it was not established by national law but rather tolerated and it was administered by the Red Cross. 9 See Annex 1 for table of detention centres in the Member States.


    Key oversight of the conditions of detention of foreigners is provided by the European Committee for the Prevention of Torture.


    National statistics on the detention of foreigners are notoriously difficult to obtain and where available are rarely comparable. Breakdown of figures, where available, is rarely on the basis of nationality. Thus it is not possible to provide details regarding the nationalities of persons who are detained in the Member States. It is helpful then to commence with an analysis of who may not be placed in administrative detention. Citizens of the state may not be placed in administrative detention of this kind as they can be neither irregular when seeking to enter their country of nationality nor subject to expulsion (Article 3 Protocol 4 10ECHR). Thus they are not (or should not be) found in camps for the detention of foreigners.

    As already noted, detention is an exception to the right of liberty of the person contained in Article 5 ECHR therefore it will only be lawful if it complies with Article 5(1)(f) the

    lawful detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition. Accordingly, citizens of the Union should not be held in these camps so long as they are exercising Treaty rights when entering or residing on the territory of an EU state other than that of their nationality. As they have a right to enter and reside under Article 18 EC, their detention will rarely be lawful when taking in combination EU law and the ECHR. The exception foreseen by the EC Treaty is where their exclusion or expulsion can be justified by the Member State on the grounds of public policy, public security or public health as defined in secondary legislation and interpreted by the European Court of Justice. Under the provisions of the EU agreements with Iceland, Norway, Liechtenstein and Switzerland, nationals of those countries are assimilated to the position of citizens of the Union as regards entry, residence and expulsion. Although these citizens are third country nationals for the purposes of EC law, in general, they are not generally found in administrative detention camps. Turkish workers lawfully residing in the Member States are also protected against expulsion by virtue of Articled 14 Decision 1/80 EC Turkey Association Agreement. It is third country nationals who are not protected by „strong‟ agreements with the EU who are likely to be found in administrative detention.

    Foreigners with valid residence and work permits cannot lawfully be placed in detention unless a decision to expel them has been taken. Persons in this situation will have lawfully entered the state and can only be detained where a lawful decision to expel has been taken. Such decisions may be taken on a number of grounds in national law. However, from 23 11January 2006, Directive 2003/109 on long-term resident third-country nationals will regulate the possibilities of expulsion of third country nationals who enjoy protection under the Directive (primarily those who have resided lawfully for five years or more in a Member State). Article 12 of the Directive provides that an expulsion decision can only be taken where the person constitutes an actual and sufficiently serious threat to public policy or security.

     10 The UK‟s Anti-terrorism, Crime and Security Act 2001 which applied a type of indefinite detention for foreigners suspected of being international terrorists was struck down by the House of Lords as discriminatory on the basis of nationality contrary to Article 14 ECHR. The UK authorities did not extend the legislation to nationals but rather replaced it with another form of restriction on liberty of the person control orders. 11 The end date for transposition of the Directive into national law.


    Thus taking into account the above information, it is primarily third country nationals other than those protected by Directive 2003/109 or „strong‟ agreements with the EU who are

    eligible for detention. In this group, taking into account the restrictions set out in Article 5(1) ECHR, two groups are liable to detention:

    1. Third-country nationals seeking unauthorised entry into the territory of a Member


    2. Third-country nationals against whom action is being taken with a view to

    deportation or extradition.

    Within these two categories, persons in four different types of situations may be placed in detention. These are as follows:

    Detention and Arrival

    Among the most substantial concerns to a number of NGOs is the detention of foreigners on arrival in the state. The adoption of legislation under which foreigners are treated as not yet having arrived at the state where their applications for entry are still under consideration or have been rejected at the border is in many cases accompanied by legislation which permits 12the detention of such persons (see zones d‟attente in France in particular). 13Notwithstanding the rejection by the European Court of Human Rights of state claims that

    such individuals are not yet in the territory, such detention is still widely applied. Detention and Asylum

    Many Member States provide for the detention of foreigners within the asylum system. A common example is the Austrian system where under the law which entered into force on 1 May 2004 (Asylum Act 2003) initial reception centres have been established. These centres hold persons who have sought asylum. The purpose of their detention is in order to determine whether their asylum application is admissible. A decision on admissibility is normally foreseen in a very short period of time (e.g. 72 hours in Austria). If it is rejected, then an expulsion decision is taken which may also result in continuing detention to effect the expulsion.

    Detention and Irregular Stay

    The fact of irregular residence is not normally sufficient to justify detention without further elements (see for instance Belgium). Thus persons who are irregularly residing are not necessarily subject to detention unless, as in the case of Belgium, this is „strictly necessary‟ for carrying out the removal, steps to enforce the removal are taken within seven days of arrest and effective removal is possible.

    Detention and Expulsion

    Where a foreigner has been ordered to leave the territory there is often a discretionary power to the authorities to detain the individual. For instance in Finland one interim measure available to the authorities where a foreigner is subject to an expulsion decision is to place him or her in detention though this decision can only be taken on reasonable grounds such as that the individual will prevent or considerably hinder the process of removal (Aliens Act s. 121). Similarly in Hungary detention for the purpose of expulsion is permitted but must end immediately if expulsion cannot be implemented (Article 46(8) Aliens Act 1999).

     12 13 Amuur v. France 1996-III, no. 11.


    The main issues of contention between individuals and states regarding detention in the different circumstances are: at the border: does the individual really have an opportunity to seek asylum if fleeing persecution? On applying for asylum: is this detention justifiable on the basis of Article 5(1)(f) ECHR for purposes of administrative convenience? On

    irregular stay: is the individual‟s stay really irregular or justified on some ground (such as the right to private and family life Article 8 ECHR)? On expulsion: is the state actually able to carry out the expulsion in a reasonable time and is the detention actually justified on the basis of public policy?


    In the above outline of camps and foreigners, we have not considered the detention of foreigners in prisons under the criminal law. As mentioned at the outset, there is a move in many Member States to create criminal offences of irregular entry and residence on the territory. The result is that on conviction of such offences, foreigners are detained within the criminal justice systems of the Member States. An analysis of this development goes beyond the scope of this essay but is nonetheless worthy of consideration. There is a transformation of the status of the foreigner from one regulated by administrative law to one where the criminal law is dominant. The longer term consequences of this change are uncertain.

    The common feature of places of detention in this analysis is their coercive nature. What is missing from the discussion is the creation of housing for foreigners in need which does not include the element of coercion: the deprivation of liberty of the person. The necessary association of detention of foreigners with expulsion, a result of the human rights obligations of the Member States, has clouded the discussion of reception of foreigners. So long as the focus is on exclusion and expulsion of foreigners it is difficult to see that any new or less constraining forms of detention camps are likely to emerge.


    There are two overwhelming concerns regarding camps and the detention of foreigners in the Member States:

    1. The conditions of detention: Do these conditions comply with Article 3 ECHR? The

    European Committee against Torture has outlined again and again its concerns

    regarding the conditions of detention of foreigners in many Member States. Where

    these conditions fail to meet minimum standards they constitute inhuman and

    degrading treatment. In some circumstances they may even constitute torture. The

    European Parliament may wish to enter into discussion with the Committee to

    investigate how better to ensure that the relevant standards of the European Convention

    against Torture and the ECHR are properly implemented in the Member States. 2. The grounds for detention: the principle of liberty of the individual must not be

    compromised. There are clearly deep concerns in Europe that the reasons for detention

    of foreigners are not sufficiently serious to justify such a fundamental interference with

    the principle of liberty. The European Parliament may wish to promote the adoption of

    legislation setting clear and high standards of liberty of the person taking into account

    the ECtHR jurisprudence on Article 5(1)(f) ECHR.


    14Annex 1. Detention Centres in the Member States

Country Open camps: Closed Administrative: Administrative: Military

    detainees can camps: publicly privately operated

    leave and return detainees operated

    (subject to some cannot leave


    151617Austria Yes Yes Yes Yes No

Belgium Yes Yes Yes Yes No

    Cyprus No No (unless No No No

    subject to



    1819Czech Yes Yes Yes ? ?


    202122Denmark Yes Yes Yes Yes No

    Estonia No Almost Yes No No 23closed

    Finland No Yes Yes No No

    242526France No Yes Yes Yes No

     14 Many thanks to the national experts of the European Commission‟s Network on Free Movement of Persons, organised by the Radboud University of Nijmegen. Information concerning the Czech Republic, Ireland, Malta, Poland and Portugal was also complemented by the following source: the Jesuit Refugee Detention Service on Detention in Europe (http://www.detention-in- 15 Reception centres for asylum seekers. 16 Nearly half of the detainees are detained (in separated parts within a state prison or a police office). In 2004: 6378 expulsions, 9132 residence bans, 5274 deportations; 9041 foreigners have been taken in custody to safeguard the expulsions, residence bans and deportations. 17 Reception centres and accommodation for asylum seekers are mainly privately operated. 18 Residence/ accommodation centres for asylum seekers 19 1. Seven detention centres for irregular migrants- 2. Reception centres for asylum seekers (who have to undergo a medical examination before being transferred to an accommodation centre) 20 One accommodation centre for asylum seekers (Sandholm). The rules on administrative detention do not apply to this category, although they are required to stay in this centre during the processing of their cases. 21 One centre for detained asylum seekers. Local detention centres (also used for criminals) to detain irregular migrants. 22 The Danish Red Cross which operates most accommodation centres for asylum seekers 23 The conditions to leave are extremely restrictive. 24 Claire Rodier, Les camps en France, June 2003, retrieved from and

    Cimade (Service oecumenique d‟entreaid) Rétention administrative des étrangers un an après la loi Sarkozy,

    December 2004, retrieved from


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