POST 19 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM
By Ulrike Brandl, Associate Professor at the Department of International Law and International Organisations, Faculty of Law, Paris Lodron University of Salzburg
AUDIO VERSION AVAILABLE HERE
Introduction
The rules in the New Pact on Migration and Asylum provide for obligations and possibilities to carry out asylum and return procedures in multi-purpose facilities situated in border areas. The hot spot approach set up in 2016 in Italy and Greece and later in a modified version in Hungary will be extended to other Member States.
Persons in the screening Procedure and certain categories of applicants for protection and persons in return procedures are not allowed to leave the border area. Restrictions of the freedom of movement and detention should guarantee the factual control over these persons.
The creation of border centres and the fiction of “non-entry” defined in Art. 6 Screening Regulation (see below) is an expression of the political consensus to restrict the entry of persons who do not fulfil the entry requirements. Border procedures and return procedures should lead to quick decisions in asylum and return procedures and should enhance that a higher number of rejected applicants for protection either voluntarily leave the State or are deported.
It will not always be easy to distinct, whether the obligation to stay in the border area is a restriction of freedom of movement or a restriction of personal liberty. Commentators (see here) and an impressive number of NGOs (see here p. 9,) here and here) describe the situation as de facto detention. This newly invented non-legal term points to blurred lines between various forms of confinement.
This blog highlights core questions concerning detention/de facto detention of the various categories of persons and analyses challenges for the protection of their fundamental rights.
The complex legal basis for detention in EU Law, reasons for detention
The provisions forming the legal basis for detention at the borders, during asylum procedures and in return proceedings are contained in several legal acts. The Screening Regulation, the Asylum and Migration Management Regulation (AMMR) and the Regulation establishing a return border procedure are new legal acts allowing detention for specific purposes. The new Reception Conditions Directive (RCD) contains slightly amended rules in comparison to the RCD still in force. The provisions in the RCD build the general basis for detention of applicants for protection including border procedures (Art. 10-14). The RCD refers to other legal acts and vice versa. The Return Directive (RD) is still applicable including its rules on detention for persons in the return procedure.
The reasons allowing detention are similar, but not identical. As in the previous legal acts the intention to prevent persons from absconding is a core reason. Illegal stay in the country concerned and secondary illegal movements to other Member States should be avoided. In all legal acts, detention is allowed where the protection of national security or public order so requires.
According to the Screening Regulation, all irregular migrants will be subject to a screening of their identity, security risk, vulnerability and health. Art. 8 (7) Screening Regulation refers to detention in the screening procedure and stipulates that the guarantees of the RD apply to persons who did not file an application for protection (see here). For applicants for protection the RCD applies.
The AMMR covers detention in the admissibility phase of the status determination procedure and provides for detention for the purpose of carrying out “Dublin” transfers to the competent Member State in its Arts. 44 and 45 (see here in detail for the “Dublin” rules about the determination of responsibility in the AMMR). Member States may detain persons to ensure transfer procedures where there is a risk of absconding or where the protection of national security or public order so requires. Detention is also allowed where persons avoid or hamper the preparation of the transfer process.
The Art. 10 (4) RCD permits detention to verify the identity or nationality of an applicant, to determine elements on which the application for international protection is based and which could not be obtained in the absence of detention, in particular where there is a risk of absconding, and also to decide, in the context of a border procedure on the applicant’s right to enter the state in accordance with Art. 43 Asylum Procedures Regulation (APR). Applicants may not be detained for the sole reason that they file an application for international protection.
The Regulation establishing a return border procedure contains rules about the continued detention of persons who were detained during the asylum border procedure and who no longer have a right to remain. The continued detention should prevent their entry into the Member State concerned.
The Screening Regulation, the AMMR and the RCD are part of the Pact, whereas the RD and the Regulation establishing a return border procedure are formally not, but closely linked to it (see here). The latter one is part of the Schengen acquis (see the opinion of the Legal Service of the Council here).
Legal guarantees for detained persons, minors and families with children
The new rules provide for extended possibilities to detain persons, they however do not amend the (procedural) guarantees. Detention may be imposed only as a measure of last resort (Art. 10 (1)) RCD) as already interpreted in CJEU case law (J. N., § 61) if it proves necessary based on an individual assessment of each case and if other less coercive measures (alternatives to detention) (see below) cannot be applied effectively. Detention must be necessary for reasons enumerated in the legal acts and proportionate.
Also, the prohibition to detain persons for the sole reason that a person is either subject to a transfer procedure (Art. 44 AMMR) or a return procedure (RD) is confirmed. According to Art. 11 RCD detention should be as short as possible. The rules however also allow continued detention for different purposes. As border procedures and return procedures are carried out at the borders and the persons must be present there for the whole period, detention will be possible for the whole period.
Detention has to be ordered in writing and the decision has to mention the reason(s) (Art. 11 (2) RCD). Art. 11(3) RCD requires that a speedy judicial review must be provided where detention is ordered by administrative authorities. Art. 11 (3) RCD includes new time limits. The review has to be decided in 15 days (maximum 21 days) and the applicant has to be released if no judgment has been adopted within 21 days. Applicants shall immediately be informed in writing. Following the first judicial review detention shall be reviewed by a judicial authority at reasonable intervals of time. If detention is held to be unlawful, the applicant has to be released immediately.
In the event of judicial review of the detention order provided for in Art. 29 (3) and (5) RCD, applicants must be granted access to free legal assistance and representation. Whereas several new legal acts show shortcomings regarding legal counselling or assistance (see for details here), the RCD provides for free legal assistance and representation in judicial proceedings challenging detention. Furthermore, detained applicants must be informed about the rules applied in the facility. Member States may derogate from that obligation in duly justified cases and for a reasonable period of time which shall be as short as possible.
The RCD contains special rules for minors and for families with children. Though minors as a general rule shall not be detained, exceptions are allowed. They may be detained if detention safeguards their best interests. For accompanied minors, detention is allowed where parents or main care-givers are detained. Unaccompanied minors may be detained, where detention safeguards the minor. Such situations however are hardly imaginable. Detention of minors has been a controversial issue in the negotiations but was finally allowed in these specific situations.
The CJEU specified procedural guarantees in cases interpreting the RCD and the RD. ln J. N. (§ 61) the CJEU held that the RCD places significant limitations on the Member States’ power to detain a person. In return and expulsion proceedings a comprehensive right to be heard must be guaranteed. In the Khaled Boudjlida judgment, the CJEU decided that the right to be heard includes that detained persons must be able to present their position on the legality of the stay, on the possible application of Articles 5 and 6 paragraphs 2 to 5 of the RD and on the modalities of the return before a return decision is issued (§ 51, 52). These guarantees also have to be respected in detention cases based on other legal acts with identical or comparable provisions.
The Court also clarified that the RD does not apply to applicants for international protection during the recognition procedure at first instance and during an appeal procedure (see § 49 Arslan judgment.
Detention in the border facilities during border procedures
A quick overview over border procedures
Border proceedings require the persons’ stay in border facilities. The mandatory use of border procedures for certain categories of applicants will severely restrict the freedom of movement of these persons in general, many of them will be formally detained.
A quick overview over border proceedings is necessary to highlight why it is predictable that the use of detention will increase and to point to the fact that it will not be easy to distinguish between detention/alternatives to detention and mere restrictions of freedom of movement.
Depending on the circumstances border procedures are either obligatory or may be conducted for those who apply for international protection. The APR stipulates mandatory border procedures for certain categories of persons, mainly for those likely not in need of protection (see here and here). These are cases where applicants are nationals of states of origin with a low recognition rate (according to the latest available yearly Union-wide average Eurostat data, 20 % or lower). Obligatory border procedures have to be conducted if applicants are considered to have intentionally misled the authorities, if there are reasonable grounds to consider them a danger to national security or public order and if applicants had been forcibly expelled for serious reasons of national security or public order under national law. For other categories of migrants, border procedures may take place.
The final decisions in these procedures, including admissibility and appeals procedures, combined with a return decision, should be made within twelve weeks. These time limits are intended to lead to quick decisions and prevent people from remaining in the respective state if their applications have been rejected. Once the application has been rejected, it should also be ensured that rejected applicants either leave the state and the territory of the Member States voluntarily or can quickly be deported.
Another important aspect is that applications in the border procedure must or may be decided in an accelerated examination procedure provided for in the APR (see here and here). The accelerated procedure is obligatory if the applicant has only raised issues that are not relevant for granting international protection, has made clearly inconsistent or contradictory or clearly false or obviously improbable representations or representations which contradict relevant and available country of origin information. Furthermore, accelerated procedures are mandatory regarding applicants who are nationals of States of origin with a low recognition rate (see here).
Detention and human rights obligations
A core question will have to be decided, presumably by national courts and the CJEU and the ECHR. Is the confinement at the border a restriction of personal liberty or a mere restriction of freedom of movement? To analyse this question, the “fiction” of non entry and its consequences might be helpful.
The “fiction” of non-entry
According to Art. 6 of the Screening Regulation, persons at the borders have not yet entered the territory of the Member States. The intention is that certain rights do not have to be granted to these persons. The legal fiction of non-entry (considering these persons to have not formally entered the territory of the relevant member state, regardless of their physical presence) is a novelty in EU law and cannot be explained in the context of this blog in all its consequences. A few observations show that in human rights treaties and refugee law, this concept of limiting rights by the fiction of non-entry is also a novelty. It also contradicts the jurisprudence of the ECtHR and other regional courts. In case-law, the jurisdiction of the respective State is consistently affirmed. The rights contained in the ECHR and other human rights treaties have to be guaranteed to all persons under the jurisdiction of a State.
Already in 1996, the ECtHR ruled in Amuur v France (§ 52) that a person in an airport transit area was already under the jurisdiction of the Member State as France had effective control over the applicants. France had argued that in international zones at airports the French jurisdiction under Article 1 of the ECHR was not given. At that time, the scope of the jurisdiction of a State in many areas had not yet been clarified by the case law of the ECtHR. Since then, the jurisdiction has also been affirmed in relation to border controls and the prevention of entry. This applies also to border control facilities and border fences (see N.D. and N.T. v Spain, § 54 et seq.) Jurisdiction of a State also exists for actions taken on ships and aircraft under the flag of a State (see Medvedyev and Others v France § 66 et seq. and Hirsi Jamaa and Others v Italy §§ 81 et seq. Consequently, Member States have to respect the rights guaranteed in the ECHR.
Is the confinement at the border a restriction of personal liberty or a mere restriction of movement?
During the border proceedings, the applicants will have to stay in the border facilities, thus their freedom of movement is restricted. As they are not legally staying in the state, Art. 2 Prot. 4 ECHR and Art. 12 Covenant on Civil and Political Rights (CCPR) are not applicable. Both provisions guarantee freedom of movement to everyone “lawfully within the territory of a State”. For those deprived of their personal liberty Art. 5 ECHR and Art. 9 CCPR apply. The RCD in its Art. 2 (9) and the other legal acts however define detention as the confinement of an applicant by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. The definition is identical to that contained in legal acts in force.
The ECtHR and the CJEU had to decide if restrictions qualify as deprivations of liberty in various situations where persons were not allowed to leave border areas. It is quite likely that the Courts will not deviate from the mainly constant jurisprudence (see here).
In the Amuur case the ECtHR ruled that the submission of the French Government stating that applicants for asylum in an airport transit centre were not detained but could leave France at any time, was a purely theoretical possibility and concluded that they were deprived of their liberty (§ 48). In subsequent case law, the Court confirmed this interpretation and ruled that the state to which the respondent state claimed there was a possibility of return must be willing to accept the person. The Grand Chamber (GC) deviated from this interpretation in the Ilias and Ahmed case and did not consider the detention of applicants in a transit centre on the border between Hungary and Serbia to be a deprivation of liberty (§ 210-249). The GC concluded that the persons were able to leave the transit centre for Serbia and were therefore not deprived of their liberty. However, in this judgment, the Grand Chamber also ruled that the return violated Article 3 of the ECHR and that Serbia was not a safe third country for the applicants. Serbia was not prepared to accept the persons and no other State was obliged or prepared to accept them. In a later judgment the ECtHR returned to its previous interpretation and ruled that the obligation to stay in Hungarian border centres was an unlawful deprivation of liberty (R.R. v Hungary, § 74-83 and on the merits § 87-92, H.M. v Hungary, § 29-32).
This amended jurisprudence might have been influenced by the jurisprudence of the CJEU. In the FMS and FNZ judgment the Court held that transit zones are tantamount to detention camps (see for a detailed analysis here (Please link to Boldiszar Nagy, A pyrrhic victory) and here).
The Court referred to the conditions in the border transit centre and qualified the obligation to remain permanently in a restricted and closed transit zone, which could not be legally left, in any direction whatsoever, a deprivation of liberty “characterised by ‘detention’ within the meaning of those directives”, § 231). The Court concluded – in sharp contrast with the Ilias and Ahmed judgment of the GC that applicants “cannot leave the zone voluntarily in any direction” (§ 230).
The judgment was issued before the ECtHR’s judgment in the R.R. case and might have influenced the amended interpretation by the Strasbourg Court. To sum up, both Courts assess that severe restrictions of movement amount to a deprivation of liberty.
Alternatives to detention or the same for all?
There is a category between detention and restriction of movement labelled as alternative to detention. The reasons for detention would allow confinement. The legal acts however require that states use more lenient measures (alternatives to detention) if they can be applied effectively (to reach the goals of detention). Allocation of persons to certain premises (often combined with reporting obligations) proved to be the alternative to detention so far imposed by Member States. Another possibility would be the deposit of a financial guarantee, or a simple obligation to stay at an assigned place. Both options have not been frequently used in practice. It seems to be nearly impossible that there will be a real difference between the restriction of movement to a border area and an alternative to detention in that area. States however might be creative and invent two different types of restriction or – and that is more likely – impose de facto detention for all.
The European Union Agency for Asylum will develop guidelines on various practices as alternatives to detention, that could be used in the context of border procedures (see here). It will be interesting to see if there are differences to the situation of persons who just stay in the border area and how these alternatives may look like.
Looking ahead
According to the new rules, persons, who are not allowed to enter, including applicants for international protection must stay in the newly created premises at the borders. Keeping persons in these premises will presumably lead to a confusing legal and factual situation. A jungle of norms (see here) regulating restrictions of the freedom of movement and detention in various legal acts will be combined with a factual jungle where migrants have to stay in the border facilities for various purposes. The legal acts adopted as part of the Pact mirror that Member States’ focus on increased border controls led to the introduction of the screening of persons crossing the external borders and mandatory border procedures. The difference to the previous situation is that it is likely that persons in all stages of the procedure will be present in the capacity centres at the borders as previously only in hot spot areas in Italy and Greece.
National courts, the CJEU and the ECtHR will most likely clarify if detention and restrictions of freedom of movement can be justified. Meanwhile States will create capacity centres, use border procedures, detain or de-facto detain persons. Much will depend on the national implementation and the organization and control of border facilities. Also, national courts will have a decisive role enforcing the protection of human rights of detained persons.