The legal framework on alternatives to immigration detention Alice BLOOMFIELD-Lilian TSOURDI Academic Network for legal studies on asylum and immigration in Europe (Odysseus Network) ‘IDC Regional Workshop 2014, Brussels’

What is the Made Real Project An 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 1 st reference group in Budapest in January 2014 looked into the methodology and content of the training module. Odysseus Academic Network Alice Bloomfield & Lilian Tsourdi4

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? Odysseus Academic Network Alice Bloomfield & Lilian Tsourdi5

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). Odysseus Academic Network Alice Bloomfield & Lilian Tsourdi6

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 Odysseus Academic Network Alice Bloomfield & Lilian Tsourdi7

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) Odysseus Academic Network Alice Bloomfield & Lilian Tsourdi8

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] Odysseus Academic Network Alice Bloomfield & Lilian Tsourdi9

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) Odysseus Academic Network Alice Bloomfield & Lilian Tsourdi10

EU framework: I. Asylum  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) Odysseus Academic Network Alice Bloomfield & Lilian Tsourdi11

EU framework: I. Asylum  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) Odysseus Academic Network Alice Bloomfield & Lilian Tsourdi12

EU framework: I. Asylum  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 Odysseus Academic Network Alice Bloomfield & Lilian Tsourdi13

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) Odysseus Academic Network Alice Bloomfield & Lilian Tsourdi14

EU framework: II. Return  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) Odysseus Academic Network Alice Bloomfield & Lilian Tsourdi15

EU framework: II. Return  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) Odysseus Academic Network Alice Bloomfield & Lilian Tsourdi16

Odysseus Academic Network Alice Bloomfield & Lilian Tsourdi17 Questions and remarks Thank you very much for your attention !

Odysseus Academic Network Alice Bloomfield & Lilian Tsourdi18 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