IMMIGRATION DETENTION IN EUROPEAN UNION LAW
Summary prepared by Eric Glavin, June 2019
Types of EU Legislation
EU law takes several different forms, all of which are defined in Article 228 of the Treaty on the Functioning of the European Union (TFEU). The first kind is Regulations, which have direct applicability in all Member States as soon as they are published by the European Commission. The second kind of EU legislation are Directives, which are binding on all Member States, but allow each Member State to transpose the law’s contents into their national legal systems. Directives do not have automatic, direct applicability in the same way as Regulations. However, the European Court of Justice has ruled that certain provisions of Directives can have direct effect in Member States’ national courts, even if the State in question has not enacted the Directive’s provisions into national law [Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) Case 26/62]. For this to be possible, the Directive’s provision must be clear, unconditional, must confer a negative obligation on the Member State, must not be dependent on any national implementing measure, and must have been made law without any reservation by the Member State. The last two forms of EU legislation are Decisions, which are only binding on the Member State to which they are addressed, and Recommendations, which have no legal force.
Regulation (EU) No 604/2013
Regulation (EU) No 604/2013, also known as the Dublin Regulation, sets out the EU law that establishes which Member State is responsible for processing and evaluating an asylum application. As a Regulation, its provisions are directly applicable in all Member States. When a national of a non-EU state applies for asylum within the EU, Article 4 of the Dublin Regulation obliges the authorities of the Member State where the application was submitted to inform the applicant (in a language that they understand) of the Regulation’s provisions. These provisions include the process for determining which Member State must process the asylum application, the consequences of moving to a different Member State while that process is incomplete, the possibility of submitting information on family members in any Member State, and the applicant’s right to access data regarding his or her application.
Article 28 of the Regulation establishes the law related to detention for the purposes of transfer. Member States may not hold a person in detention for the sole reason that he or she is being evaluated for protected status. The only circumstances in which a Member State may detain a person who is subject to a procedure to determine their status, is when, on the basis of a individual assessment, the State deems that there is a “significant risk” of the person absconding.
Subsection 3 of Article 28 states that, where a person is detained, the Member State must send a take charge or take back request to the country deemed responsible within 1 month. Where a person is detained pursuant to this Article, the transfer of that person from the requesting Member State to the Member State responsible shall be carried out as soon as practically possible, and at the latest within six weeks of the implicit or explicit acceptance of the request by another Member State to take charge or to take back the person concerned or of the moment when the suspensive effect of the appeal or review under with Article 27(3) has expired. When the requesting Member State fails to comply with the deadlines for submitting a take charge or take back request or where the transfer does not take place within the period of six weeks referred to in the third subparagraph of the same provision, the person shall no longer be detained.
Directive 2008/115/EC
Directive 2008/115/EC sets out the European Union’s laws relating to migrants’ voluntary departure, detention, and removal. As a Directive, Member States are responsible for transposing its provisions into their own national legal systems, and the Directive’s provisions do not have direct applicability. However, they can have direct effect, if the obligations imposed on the State are negative ones, and are clear and unconditional.
Voluntary Return
Article 7 of Directive 2008/115/EC provides for the option of voluntary return, once a migrant has received a removal order. Member States must provide a period of 7-30 days following the issuing of a removal order, to allow the individual concerned to leave the State’s territory. Subsection 7(3) allows Member States to grant a shorter or no time period for voluntary departure, in situations where it is judged that there is a risk of absconding, the individual represents a threat to public or national security, or if the application for legal stay is found to be manifestly unfounded or fraudulent.
Deportation
Article 8(4) of the Directive states that where Member States use — as a last resort — coercive measures to carry out the removal of a third-country national who resists removal, such measures shall be proportionate and shall not exceed reasonable force. They shall be implemented as provided for in national legislation in accordance with fundamental rights and with due respect for the dignity and physical integrity of the third-country national concerned.
Article 10(1) of the Directive states that “Before deciding to issue a return decision in respect of an unaccompanied minor, assistance by appropriate bodies other than the authorities enforcing return shall be granted with due consideration being given to the best interests of the child.”
Articles 12 and 13 of the Directive obliges Member States to provide persons subject to a deportation order with information on how to appeal the decision. If an individual decides to pursue the legal action of appealing the deportation order, Article 13(4) requires the Member State to provide legal assistance and/or representation, free of charge.
Article 13 of the Directive states that return decisions for irregular migrants are to be given in writing, containing justifications outlined in fact and law, and with information on potential avenues of legal appeal if the applicant wishes to pursue them.
Detention
Article 15 of the Directive outlines the conditions in which a Member State’s authorities are allowed to detain irregular migrants. Subsection 1 of Art. 15 states that the only time a Member State may detain an irregular migrant is when they are the subject of a procedure to return them to their country of origin or a third country. Detention may only be employed in situations where the authorities deem that the individual poses risk of absconding, or if the individual avoids or hampers the removal process. Subsection 2 states that if a migrant is detained, it must quickly follow by allowing the migrant to request judicial review, in order to determine whether the use of detention is lawful. Any migrant whose detention is found to be unlawful must be immediately released. Subsections 5 and 6 state that a migrant may not be detained for an initial period of more than 6 months. The migrant’s detention may be reviewed and extended for a maximum of an additional 12 months, for the purposes of ensuring successful removal of the individual from the State’s territory, if there is a lack of cooperation by the third-country national concerned or due to delays in obtaining the necessary documentation from third countries. A Member State is not permitted to detain any individual in preparation for their deportation for more than 18 months total. If these 18 months elapse while a migrant is in detention, the Member State must release them and may not re-detain them based on the facts and circumstances of the original case.
Article 16 of the Directive guarantees certain rights to migrants while in pre-removal detention. Such detentions are to be in specialised detention facilities. Member States are obligated to provide essential treatment of illness and emergency medical care when necessary. Migrants kept in detention have the right to contact with legal representatives. They also have the right to be systematically informed of their legal rights and obligations under national and EU law.
Article 17 of the Directive stipulates that unaccompanied minors and families with minors shall only be detained as a measure of last resort and for the shortest appropriate period of time. Unaccompanied minors in detention are to be provided with accommodation appropriate to their needs and age. All children in detention are to be provided with the opportunity to engage in recreation and play, as well as given education depending on the length of their stay. Families detained pending removal from a Member State shall be guaranteed separate accommodation guaranteeing adequate privacy.
Directive 2013/33/EU – Reception Conditions Directive
Directive 2013/33/EU establishes the European Union laws on how Member States are to treat persons who arrive on their territory and apply for protected status.
Article 6 of the Directive states that Member States must issue an applicant for protected status with a temporary document, confirming their right to be in part or all of the territory of the Member State while their application is processed. This document must be given to the applicant within 3 days of the moment they submit their application.
Article 7 of the Directive states that Member States may decide where an applicant for protected status is to reside while their application is being processed. In some cases, the Member State may assign a specific area in which the applicant must live. The assigned area shall not affect the unalienable sphere of private life and shall allow sufficient scope for guaranteeing access to all benefits under this Directive.
Article 8 of the Directive states that Member States shall not hold a person in detention for the sole reason that he or she is an applicant for protected status. The only time a Member State may employ detention regarding an applicant for protected status is where it is necessary to determine the person’s identity or nationality, if it is necessary to evaluate the merits of the application, or if it is necessary to maintain public order or national safety.
Article 9 of the Directive covers guarantees for detained applicants. An applicant whose situation is judged to require detention must be detained for as short a period as possible. Subsection 2 states that those persons who are detained must be given written judgments by the state agency, detailing its justification in fact and law. Subsections 3-4 state that Member States must provide a detained person with written information on how to appeal their detention in court, how to access free legal representation, and must provide them with the opportunity to appeal. If the court finds the detention to be unlawful, the person must be released immediately.
Article 10 of the Directive covers the conditions in which detainees must be held. Detained applicants must be given access to open-air spaces. Member States shall ensure that persons representing the United Nations High Commissioner for Refugees (UNHCR) have the possibility to communicate with and visit applicants in conditions that respect privacy. That possibility shall also apply to an organisation which is working on the territory of the Member State concerned on behalf of UNHCR. Detainees must be allowed to communicate with family, legal representation, and non-governmental organizations in private conditions.
Article 11 of the Directive covers special conditions for vulnerable detainees. Minors must only be detained as a last resort, and must be given access to leisure activities if they are detained. (Article 14 also states that if minors are in detention for a sufficient amount of time, they must be provided with schooling and education). Unaccompanied minors can never be detained in prison accommodation. Detained families should be given separate space that respects their privacy. Female detainees should be given accommodation separate from male detainees, unless they are family.