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Resolution 1707 (2010) Final version
Detention of asylum seekers and irregular migrants in Europe
1. The detention of asylum seekers
and irregular migrants in Council of Europe member states has increased
substantially in recent years. While this increase is in part due
to the growing number of arrivals of irregular migrants and asylum
seekers in certain parts of Europe, it is also to a large extent
due to policy and political decisions resulting from a hardening
attitude towards irregular migrants and asylum seekers.
2. Overcrowding in detention centres is a serious problem. As
the number of detainees exceeds the capacity of detention centres,
states are building more and bigger centres. However, if they build
more centres, they fill more centres, often to justify the expenditure.
Yet this does not necessarily translate into better conditions for
the persons detained. Furthermore, alternative facilities, which
are inappropriate for detaining asylum seekers and irregular migrants
belonging to this group, such as police stations, prisons, disused
army barracks, hotels, mobile containers, etc., are also being used
in order to detain growing numbers of persons.
3. Whilst it is universally accepted that detention must be used
only as a last resort, it is increasingly used as a first response
and also as a deterrent. This results in mass and needless detention.
The Parliamentary Assembly is concerned by this excessive use of
detention and the long list of serious problems which arise as a
result and which are regularly highlighted, not only by Council
of Europe human rights monitoring bodies such as the European Court
of Human Rights, the European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment (CPT), the Human
Rights Commissioner and the Assembly’s Committee on Migration, Refugees
and Population, but also by other international and national organisations.
4. Conditions and safeguards afforded to immigration detainees
who have committed no crime are often worse than those of criminal
detainees. Conditions can be appalling (dirty, unsanitary, lack
of beds, clothing and food, lack of sufficient health care, etc.)
and the detention regime is often inappropriate or almost entirely absent
(activities, education, access to the outside and fresh air). Furthermore,
provision for the needs of vulnerable persons is often insufficient
and allegations of ill-treatment, violence and abuse by officials
persist. This all has a negative impact on the mental and physical
well-being of persons detained both during and after detention.
5. Detention is costly in financial terms for the states which
often resort to this measure and which detain persons for lengthy
periods of time. The European Union Return Directive, which provides
for a maximum length of detention for irregular migrants of up to
eighteen months, can be criticised for adopting the lowest common
standard with regard to length of detention thereby allowing European
Union member states to practice long-term detention, and increasing
the possibility for states to increase their minimum duration of detention.
6. The Assembly is particularly concerned about the detention
of asylum seekers who should be distinguished from irregular migrants.
Under the 1951 Convention Relating to the Status of Refugees there
are only specific and narrow exceptions to their right to freedom
of movement. According to the convention, asylum seekers should
not be detained solely on the basis of lodging a claim for asylum,
nor for their illegal entry or presence in the country where they
lodge a claim for asylum.
7. It is not just conditions of detention that are of concern.
The lack of clarity over when detention may be legally justified
preoccupies the Assembly. There is a clear lack of a precise, accessible
legal framework governing the use of detention under international
human rights law and refugee law. Furthermore, national laws and
regulations are often insufficient (leaving too much discretion
to immigration officials), detention policies are not transparent
(leaving individuals open to abuse or arbitrariness), detainees’
access to lawyers is limited and empirical data concerning detention
lacking. In addition, there must be a clear, accessible framework,
governing the operation of centres and the conditions afforded,
which must also be subject to judicial review.
8. The Assembly reiterates that the grounds for immigration detention
are limited by Article 5.1.f of
the European Convention on Human Rights (ETS No. 5). Detention should
be used only if less intrusive measures have been tried and found
insufficient. Consequently, priority should be given to alternatives
to detention for the individuals in question (although they may
also have human rights implications). Alternatives to detention are
financially more attractive for the states concerned and have been
found to be effective. Unfortunately, in some states, alternatives
to detention are rarely used or have not even been included in national
law, notwithstanding all obligations to consider such alternatives.
9. In view of the above-mentioned considerations, the Assembly
calls on member states of the Council of Europe in which asylum
seekers and irregular migrants are detained to comply fully with
their obligations under international human rights and refugee law,
and encourages them to:
9.1. follow
10 guiding principles governing the circumstances in which the detention
of asylum seekers and irregular migrants may be legally permissible.
These principles aim to ensure that:
9.1.1. detention of
asylum seekers and irregular migrants shall be exceptional and only
used after first reviewing all other alternatives and finding that
there is no effective alternative;
9.1.2. detention shall distinguish between asylum seekers and
irregular migrants; asylum seekers must be protected from penalties
on account of their unauthorised entry or presence;
9.1.3. detention shall be carried out by a procedure prescribed
by law, authorised by a judicial authority and subject to periodic
judicial review;
9.1.4. detention shall be ordered only for the specific purpose
of preventing unauthorised entry into a state’s territory or with
a view to deportation or extradition;
9.1.5. detention shall not be arbitrary;
9.1.6. detention shall only be used when necessary;
9.1.7. detention shall be proportionate to the objective to be
achieved;
9.1.8. the place, conditions and regime of detention shall be
appropriate;
9.1.9. vulnerable people should not, as a rule, be placed in
detention and specifically unaccompanied minors should never be
detained;
9.1.10. detention must be for the shortest time possible;
9.2. put into law and practice 15 European rulesgoverningminimum
standards of conditions of detention for migrants and asylum seekers
to ensure that:
9.2.1. persons deprived of their liberty
shall be treated with dignity and respect for their rights;
9.2.2. detainees shall be accommodated in centres specifically
designed for the purpose of immigration detention and not in prisons;
9.2.3. all detainees must be informed promptly, in simple, non-technical
language that they can understand, of the essential legal and factual
grounds for detention, their rights and the rules and complaints
procedure in detention; during detention, detainees must be provided
with the opportunity to make a claim for asylum or complementary/subsidiary
protection, and effective access to a fair and satisfactory asylum
process with full procedural safeguards;
9.2.4. legal and factual admission criteria shall be complied
with, including carrying out appropriate screening and medical checks
to identify special needs. Proper records concerning admissions,
stay and departure of detainees must be kept;
9.2.5. the material conditions for detention shall be appropriate
to the individual’s legal and factual situation;
9.2.6. the detention regime must be appropriate to the individual’s
legal and factual situation;
9.2.7. the detention authorities shall safeguard the health and
well-being of all detainees in their care;
9.2.8. detainees shall be guaranteed effective access to the
outside world (including access to lawyers, family, friends, the
Office of the United Nations High Commissioner for Refugees (UNHCR),
civil society, religious/spiritual representatives) and the right
to receive frequent visits from the outside world;
9.2.9. detainees shall be guaranteed effective access to legal
advice, assistance and representation of a sufficient quality, and
legal aid shall be provided free of charge;
9.2.10. detainees must be able periodically to effectively challenge
their detention before a court and decisions regarding detention
should be reviewed automatically at regular intervals;
9.2.11. the safety, security and discipline of detainees shall
be taken into account in order to maintain the good order of detention
centres;
9.2.12. detention centre staff and immigration officers shall
not use force against detainees except in cases of self-defence
or in cases of attempted escape or active physical resistance to a
lawful order, and always as a last resort and in a manner proportionate
to the situation;
9.2.13. detention centre management and staff shall be carefully
recruited, provided with appropriate training and operate to the
highest professional, ethical and personal standards;
9.2.14. detainees shall have ample opportunity to make requests
or complaints to any competent authority and be guaranteed confidentiality
when doing so;
9.2.15. independent inspection and monitoring of detention centres
and of conditions of detention shall take place;
9.3. consider alternatives to detention and:
9.3.1. provide
for a presumption in favour of liberty under national law;
9.3.2. clarify the framework for the implementation of alternatives
to detention and incorporate into national law and practice a proper
legal institutional framework to ensure that alternatives are considered
first, if release or temporary admission is not granted;
9.3.3. ensure that their application is non-discriminatory, proportionate
and necessary and that the individual circumstances and vulnerabilities
of those to whom they are applied are taken into account and that
the possibility of review by an independent judicial body or other
competent authority is provided for;
9.3.4. commission and carry out empirical research and analysis
on alternatives to detention, their use and effectiveness, and best
practice, distinguishing between community-based alternatives that
allow for freedom of movement and those which curtail freedom of
movement. In this respect, the following alternatives can, inter alia, be taken into account:
9.3.4.1. placement in special establishments (open or semi-open);
9.3.4.2. registration and reporting;
9.3.4.3. release on bail/surety;
9.3.4.4. controlled release to individuals, family members, non-governmental organisations
(NGOs), religious organisations, or others;
9.3.4.5. handover of travel and other documents, release combined
with appointment of a special worker;
9.3.4.6. electronic documents or electronic monitoring.
10. The Assembly invites the Council of Europe’s Commissioner
for Human Rights and the CPT to continue to monitor closely the
situation of the detention of asylum seekers and irregular migrants
and to support the guiding principles laid out above in relation
to legally permissible detention and minimum standards for conditions
of detention. Furthermore, they are invited to encourage member
states to examine and use to a much greater extent alternatives
to detention.