Transcript Detention of asylum seekers in Latvia

A Critical Overview of the
Immigration Detention Practice
in 5 EU Member States – A
Comparative Perspective
Daphné Bouteillet-Paquet, Ph D. La
Sorbonne
International Expert, Odysseus Network
ULB
Project “Steps to Freedom”
Project co-funded by the European Refugee Fund
The sole responsibility for the
content of this presentation lies
with the author.
The Commission is not be
responsible for any use that may be
made of the information contained
therein.
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OVERALL PRESENTATION
1. Presentation of the objectives
and methodology of the synthesis
report
2. Presentation of the key findings
with regards to the legal framework
and procedural safeguards in the
selected EU Member States
3. Presentation of the final
recommendations – the 7 steps to
freedom
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I. Overall presentation of the
research
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1.Scope – Czech Republic, Estonia, Latvia, Lithuania
and Slovakia;
2. Critical analysis of immigration detention
legislation and practice vis-à-vis asylum seekers, incl.
failed asylum seekers in light of EU acquis and
international legal standards;
3. State of play with regards to development and
implementation of alternative measures to detention.
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Policy recommendations
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UNHCR- OCHR Global Round Table on Alternatives
to Detention of Asylum Seekers, Migrants and
Stateless Persons, 11-12 May 2011;
EU Fundamental Rights Agency November 2010
Report ;
JRS Report Becoming Vulnerable in Detention,
IDC, There Are Alternatives – A Handbook for
Preventing Unnecessary Immigration Detention,
2011.
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Methodological issues
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Desk research and interviews conducted from July
2010 till October 2011;
Monitoring of reception and detention places accross
the selected countries, including border crossing
points and airport facilities;
Complexity of the domestic legal landscape and the
recent changes with transposition of relevant EC
directives; constant evolution of the EU acquis.
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II. Presentation of the key
findings
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3.
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5.
6.
7.
Pre-entry detention
Pre-removal detention
Detention of vulnerable groups
Procedural safeguards against arbitrary detention
Access to an effective remedy
Length of detention
Alternative measures to detention
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1. Issues with regards to preentry detention
Article 31.1 Geneva Convention
1999 UNHCR Revised Guidelines
→ Non-penalization clause
→ Legal presumption against the detention of
asylum seekers
→ Detention shall only be a measure of last
resort
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1999 UNHCR Revised Guidelines
on Detention
 i) Cases in which identity is undetermined or in dispute;
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ii) Preliminary interview;
iii) Cases where there is an intention to mislead the authorities;
iv) Cases where there is evidence to show that the asylumseeker has criminal antecedents and/or affiliations likely to
pose a risk to public order/national security
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EC standards
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Presumption against detention of asylum seekers
reflected in the EC acquis:
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→Art. 5 and 13 of the Schengen Borders Code;
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→ Council Directive 2005/85/EC of 1 December
2005 on minimum standards on procedures in
Member States for granting and withdrawing refugee
status.
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Comparative overview in the
selected States
→ Detention of asylum seekers authorized by
legislation in Czech Republic and Latvia –
potential breach of the non-penalisation clause
 → Inadequate practice in Slovakia, Estonia
and Lithunia with regards to limited cases
(Dublin II, manifestly unfounded cases, breach
of regulations of the reception centres, courts’
practice)
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2. Issues with regards to
pre-removal detention
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→ Abundant ECtHR caselaw:
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Saadi vs UK, applic. n° 13229/03 29 January 2008
Auad vs Bulgaria, applic. n° 46390/10 11 October 2011
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→ Directive 2008/115/EC on common
standards and procedures in Member States for
returning illegally staying third country
nationals
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Comparative overview in the
selected States
→ State of play of the transposition of EC
Directive 2008/115/EC – complexity of the
legal landscape
 → Principle of voluntary returns – poorly
reflected
 → Lack of indicators to establish the necessity
and proportionality of detention measures
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Bechmarks for developing
detention indicators
UKBA Enforcement Instructions and Guidance:
→ Likelihood of the removal ; Evidence of previous absconding
or previous failure to comply with conditions of temporary
release or bail;
→ History of breach/compliance of the immigration regulations;
→ Personal ties with the UK and expectations with regards to the
outcome of the case;
→ Personal history; age, gender and vulnerability
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3. Issues with regards to
detention of vulnerable groups
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Prohibition of child detention :
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- Guideline 5 of the 1999 UNHCR Revised
Guidelines ;
- Parliamentary Assembly, Resolution on the
detention of asylum seekers and irregular migrants in
Europe, Committee on Migration, Returns and
Population, 11 January 2010, document 12105
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ECtHR standards
No explicit prohibition but strict safeguards to be
applied:
- ECtHR, Mubilanzila Mayeke and Kaniki
Mitunga vs Belgium, application n° 13178/03,
12 October 2006;
- ECtHR, Muskhadzhiyeva and others vs
Belgium, application n° 41442/07 19 January
2010
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EC standards – towards a presumption
against child detention?
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- Articles 3.9, 16 and 17 Directive 2008/115/EC
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- Communication from the Commission to the Council and the
European parliament, Action Plan on Unaccompanied Minors,
COM (2010) 213 final, 6 May 2010
- Amended proposal for a Directive of the European
Parliament and of the Council laying down standards for the
reception of asylum seekers, COM (2011) 320 final,
2008/0244 (COD)
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Comparative overview in the
selected States
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→ Lack of adequate legislation in Estonia
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→ Lack of adequate practice in the Czech
Republic, Latvia
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→ Good practice in Lithuania
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Benchmarks for improving current
practice with regards to age assessment
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- Committee on the Rights of the Child, General
Comment No. 6 (2005), U.N. Doc. CRC/GC/2005/6,
para.7.
- United Nations High Commissioner for Refugees,
Guidelines on Policies and Procedures in Dealing
with Unaccompanied Children Seeking Asylum,
February 1997, para. 5.11.
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Benchmarks for developing
vulnerability indicators
→ UNODC and UN. GIFT, Anti-Human Trafficking
Manual for Criminal Justice Practitioners, 2009
available at :www.unodc.org
→ Development of referral mechanisms VoT
→ Training tools
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4. Procedural safeguards against
arbitrary detention
→ Recent improvements to be noted with
introduction of new pieces of legislation and
reports of international monitoring bodies
→ Yet, improvements are required with regards
to access to adequate information, access to
asylum procedure in detention, the
sustainability and availability of legal
assistance.
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Access to information related to
detention
According to the Article 5.2 ECHR and 9
ICCPR, there is a right of detainee to be
‘promptly’ informed of the reasons for
detention
Reflected in EC law Articles 12-13 of the
Directive 2008/115/EC and Article 5 of the
Directive 2003/9/EC
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Comparative overview in the
selected States
→ Good practice in Estonia and in the Czech
Republic (regular procedure)
→ Lack of legal provisions in Lithuania
→ Inadequate implementaton in Latvia
→ Lack of adequate interpretation and
translation services in particular for rare
languages in most countries
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Access to information related to
the asylum procedure
→ Council Directive 2005/85/EC of 1 December 2005
on minimum standards on procedures in Member
States for granting and withdrawing refugee status.
→ Good practice in Estonia, in the Czech Republic
(regular procedure) and in Slovakia;
→ Ad hoc practice in Latvia; Lithuania MOU June
2010
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Access to Legal assistance
→ EC standards more advanced than ECtHR
case law
→ Access to legal assistance both with regards
to pre-entry detention Articles 15 and 16 of the
Directive 2005/85/EC
→ Pre-removal detention – Article 13.4 of the
Directive 2008/115/EC
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Comparative overview in the
selected States’
→ Good practice in the Czech Republic and in
Slovakia
→ Lack of adequate practice in 3 countries:
Restrictive interpretation of EC standards in
Lithuania; recent access in Estonia; issues with
regards to sustainability of the legal assistance
in Latvia
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Benchmarks for improving
current practice
→ Improve access to legal assistance a dialogue with
civil society organizations as well as bar associations
→ Improve quality of legal assistance needs to be
improved through adequate trainings
→ Seek technical assistance from EU institutions and
agencies to pull out common resources with regards
to interpretation and translation
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5. Issues with regards to Access
to an effective remedy
Access to judicial review is granted in all the
countries of concern. However,
→ Lack of adequate periodic review in Latvia
and in the Czech Republic
→ Lack of speedy and prompt judicial review in
Slovakia
→Lack of adequate proprtionality and necessity
test
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6. Maximum length of detention
→ Except for Lithuania, all the countries have
introduced a maximum length of detention in
line with Article 15.5 of the Directive
2008/115/EC
→ Maximum ceiling is 6 months with
exceptional 12 months prologation if there is a
lack of cooperation on behalf of the individual
or delays in obtaining documentation
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ECtHR, Auad vs Bulgaria, applic.
n°31465/08
“Compliance with the [6 month time-limit], (…),
cannot automatically be regarded as bringing the
applicant’s detention into line with Article 5 § 1 (f) of
the Convention. As noted above, the relevant test
under that provision is rather whether the deportation
proceedings have been prosecuted with due diligence,
which can only be established on the basis of the
particular facts of the case.”
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7. Alternatives to Detention
The synthesis report includes provisional conclusions as there
has been so far a very limited use of A2Ds in the selected
countries:
→ PB of A2Ds granted for humanitarian reasons in Latvia
→PB of income + adequate accomodation requirements in
Lithuania
→ Ill-defined notion of « serious risk of absconding » in Czech
Republic and in Slovakia
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Recommendations for further
developing A2Ds
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Step-by-step approach
Study visits and assessment of existing A2Ds in other EU
Member States
Development of a pilote-program for a special category such
as families with children
Individual case management
Transparent and independent assessment of the pilot
Adequate statistical tool to colect both qualitatve and
quantitative information
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III. Final 7 Recommendations
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4.
Strengthen the legal presumption against detention ;
Adopt a list of indicators assessing the necessity and
proportionality of detention measures ;
Detention of vulnerable persons shall be avoided;
Further strengthen procedural safeguards against
arbitrary detention:
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(bis)
5. Strengthen access to an effective remedy
6. Strictly limit the duration of detention
7. Strengthen the implementation of alternatives
to detention through pilot-projects
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Thank you!
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