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NCADC News Service
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     "Protection of refugees" has turned into "Protection from refugees"

     Jesuit Refugee Service-Europe (JRS-Europe), have produced a report on Detention in Europe, below are selected extracts from the report chosen by NCADC, emphasis in italics is NCADC's, attached PDF is the full report.

     "Detention in Europe: Administrative Detention of Asylum Seekers and Irregular Immigrants". "Observation and Position Paper on Detention"

     Introduction
     EU Member States as well as their neighbouring States, most of them among the new Member States after 1 May 2004, tightened their refugee policies, which became ever more repressive and restrictive. "Protection of refugees" turned into "Protection from refugees". This policy trend is even stronger after the terrorist attacks of 1 September 2001. In the European Union domestic security as well as refugee protection fall within the competence of Justice and Home Ministers, and now they clearly give priority to domestic security over refugee protection. . . . . . .

 . . . . EU Member States detain asylum seekers and other refugees as well as migrants in order to make forceful return, especially deportation, easier, but also to facilitate processing of asylum claims.

     Detainees in Europe
     In detention, detainees do not only suffer from the deprivation of fundamental liberties, often including the separation from their family and, at times, from their children; they also suffer from long periods without the opportunity to pursue meaningful activities. In particular, they suffer from "criminalization" as a result of being detained, and they face enormous insecurity as a result of fear as to what the future holds for them. . . .

      . . . . Although, legally, detention is only an administrative measure and not a measure of the penal system, its application often takes on characteristics of criminal incarceration, resulting in significant emotional, physical and mental health problems for detainees.

     Detention duration
     The maximum duration under national law for detention of migrants and refugees, including asylum seekers, varies significantly throughout Europe: for example, from six 173 days in Spain, 60 days in Italy, three months in Greece, five months in Belgium and 18 months in Germany to an unlimited time period in Great Britain.

      . . . . in October 2002, the EU Commission presented a "Communication to the Council and the European Parliament on a community return policy on illegal residents". In this Communication, the EU Commission acknowledged "the need for Member States to provide for the possibility of detention pending removal". However, the EU Commission stated in this document, too, that "a fair balance should be struck between the Member States' need for efficient procedures and safeguarding the basic human rights of the illegal residents", and it recommended that "minimum standards on detention pending removal should be set at EU level, defining competencies of responsible authorities and the preconditions for detention in the framework of a future Directive on Minimum Standards for Return Procedures".

The EU Council picked this reminder of human rights and the suggestion of common "minimum standards" up, transformed it, however, in spirit and content - from safeguarding human rights to facilitating operational co-operation. . . .

     Principle of proportionality
     Detention and detention practises must comply with the Principle of proportionality. Article 49 of the Charter of Fundamental Rights of the European Union explicitly refers to this principle, which demands that any measure of a public authority that affects a human right must be appropriate, necessary and reasonable. It is a general common principle of law limiting legislative and administrative power, if a basic right is subjected to limitations.

     Right to freedom of movement
     Detention is the contrary to the freedom of movement. According to Article 45 of the Charter of Fundamental Rights of the European Union, freedom of movement is granted not only to citizens of EU Member States, but freedom of movement may be granted to "nationals of third countries legally resident in the territory of a Member State", too. National legislation determines who is considered to be "legally" residing, but national legislation in the EU Member States vary in this respect. Generally, refugees are not considered "illegal", when there are no legal grounds for expulsion; thus, when there are no legal grounds for expulsion, refugees need to be considered as "legally resident."

     Right to medical care
     Article 23 of the Geneva Convention relating to the Status of Refugees states "the Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals, including medical attendance and hospital treatment.

     Article 28 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families states that "migrant workers and members of
their families shall have the right to receive any medical care that is urgently required for the preservation of their life or the avoidance of irreparable harm to their health on the basis of equality of treatment with nationals of the State concerned. Such emergency medical care shall not be refused them by reason of any irregularity with regard to stay or employment."

     Protection of families
     Family life and family unity enjoy special protection, too. Regarding detained family members, especially the detention of mothers and single fathers of young children whom detention separates from their children, but also regarding administrative rules on family visits to detainees, Article 33 of the Charter of Fundamental Rights of the European Union states, that "the family shall enjoy legal, economic and social protection." Also, Article 23 of the International Covenant on Civil and Political Rights as well as Article 8 of the European Convention on Human Rights and Article 10 of the International Covenant on Economical, Social Cultural Rights oblige States to protect family life.

     UNHCR's Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers
     In 1999 UNHCR established Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers. The detention of asylum-seekers is, in the view of UNHCR, "inherently undesirable".

 . . . . This is even more so in the case of vulnerable groups such as single women, children, unaccompanied minors and those with special medical or psychological needs. Freedom from arbitrary detention is a fundamental human right and the use of detention is, in many instances, contrary to the norms and principles of international law.

 . . . . As a general principle asylum-seekers should not be detained. According to Article 14 of the Universal Declaration of Human Rights, the right to seek and enjoy asylum is recognised as a basic human right. In exercising this right asylum-seekers are often forced to arrive at or enter a territory illegally. However, the position of asylum-seekers differs fundamentally from that of ordinary immigrants in that they may not be in a position to comply with the legal formalities for entry. This element, as well as the fact that asylum-seekers have often had traumatic experiences, should be taken into account in determining any restrictions on freedom of movement based on illegal entry or presence."

     Alternatives to detention
     . . . . UNHCR has emphasized that while detention may be used in exceptional circumstances, consideration should always be given first to all possible alternatives. Thereafter, detention should be used only if it is reasonable and proportional and, above all, necessary.

     JRS-Europe's positions

     Political and legal language
     JRS-Europe denounces political and legal notions like "illegal immigrant" or "removal" of persons. A behaviour or a situation can be "illegal", i.e. not to comply with law, but not a person. "Removal" of persons brings back, in memory, terrifying situations and events in Europe, such as "concentration camps" and "ethnic cleansing".

     Use of detention
     JRS-Europe wants the use of detention to be avoided.

     Principle of proportionality
     JRS-Europe is of the opinion that any restriction to personal life, which is not justified by the purpose of the detention, is in contradiction to the principle of proportionality and endangers human rights.

v Detention for deportees is in most cases unnecessary and ineffective because:

v Research has shown that only 2 % of people released on bail have absconded.

v Serious factors motivating a person to leave his/her home country and to go to another country, such as civil war, human rights violations, disastrous economical or environmental situations, are more decisive than the deterrent effect of detention.

v Detention criminalizes people who have not committed a crime.

v Detention causes unnecessary harm and injustice.

v Detention itself does not help to verify a person's identity.

v Detention has enormous financial costs.

v Detention has an adverse effect on the morals of society as it normalizes exclusion and  administrative imprisonment of a part of the society and provokes racism and xenophobia.

     Grounds of detention
     If detention cannot be avoided, a detention order must be based on grounds provided by a formal law. A detention order itself must be issued in accordance with a procedure prescribed by law, whether issued by a court or another public authority. A detention order should never be based solely on the fact that a person has entered the territory of the state "illegally" or stays "illegally" because this does not automatically imply an intention not to comply with the duty to leave the country, for instance after a negative asylum procedure, and may be unnecessary. Any regulation providing grounds for detention orders must clearly state that the order must be based on objective evidence regarding the facts and the personal behaviour in the past and that due to this behaviour no other less restrictive means exists to enforce return. The behaviour can only be considered when the concerned person knew about his/her obligation to leave the country (was informed about his/her obligation in a language he/she understands), and when he/she had informed access to the appeal process.

     Domestic security
     JRS-Europe is concerned that domestic security is used more and more as a reason to detain refugees. If public order and/or national security are a consideration in such cases, any measures to detain must be based on criminal law. Administrative detention is neither an adequate nor a reasonable response.
Criminal and administrative law can and should address the problem of threats to national security and public order without criminalizing innocent refugees and migrants.
     Detention duration
     The duration of detention often exceeds reasonable time limits, and alternative methods of assuring a person's presence during proceedings and/or ultimate departure - reporting to local authorities, guarantors, custody agreements, bail, open detention centres - are often ignored or not considered. National law must specify a maximum duration for detention.

JRS-Europe is aware that it may be problematic to suggest a maximum duration by proposing a precise term. However, given the enormous differences in national provisions in Europe, JRS-Europe also recognizes danger in not doing so and leaving it to the discretion of the states to fix a term - or indeed not to fix any term.

     Compensation
     Compensation should be provided to any person who has been unlawfully detained or in case of a breach of Article 5 of the European Convention on Human Rights or Article 9 of the International Covenant on Civil and Political Rights.

     Special protection for especially vulnerable persons
     JRS-Europe strongly believes that special groups of individuals should never be detained in detention centres given the negative impact of detention on their psychological and physical health and on the right to family life. These groups are:
v Minors

v Pregnant women

v Traumatized persons

v Persons with special physical or mental health needs

v Persons older than 65 years

v Mothers or fathers accompanying minors under 14 years

v Chronically or seriously ill persons

     Detention as a push factor for irregular immigration
     JRS-Europe stresses that the more asylum seekers are detained after lodging a claim either at the frontier or in the country, the more those who have protection needs may be forced into situations of illegality rather than pursuing legitimate asylum claims.

     JRS-Europe's appeals - To governments and legislators in European States
     JRS-Europe urges governments and legislators in European States to avoid the use of detention because detention implies restrictions of fundamental human rights.

     JRS-Europe urges governments and legislators in European States not to use detention as a deterrent or as a reception or return policies element that is applied in a systematic and general way because in an "area of freedom, justice and security" there is no place for systematic restrictions of human rights.

     JRS-Europe urges governments and legislators in European States not to detain asylum seekers and other people applying for a status until a final decision is made, as this is the only way to ensure the right of a fair asylum procedure by enabling applicants to easily consult a lawyer, a refugee organization etc. of their choice and confidence in order to obtain legal advice and avoid re-traumatization and intimidation. "Final decision" means the exhaustion of all administrative and judicial appeals even if there is no suspensive effect.

     JRS-Europe urges governments and legislators in European States, which detain refugees and migrants, that such detention should be as short as possible, and should never exceed a total time period of two months, be it in one or multiple periods of detention even after release or transfer to another centre. This suggestion of a maximum time period should not be used as a justification to detain or to increase any maximum duration of less than two months under current legislation. In case a person cannot be returned within this two-month period and therefore must released, he/she must not be left in an illegal status and/or destitute. These are requirements of the Principle of proportionality.

     JRS-Europe urges governments and legislators in European States to transpose and implement International Public Law concerning detention and detainees and to adhere to the UN Body of Principle for the protection of all persons under any form of detention or imprisonment, the UN Standard Minimum Rules for the Treatment of Prisoners as well as to the UN Rules for the Protection of Juveniles Deprived of their Liberty and the Standards of the European Committee for the Prevention of Torture (CPT) in order to prevent human rights violations of refugees, asylum seekers and migrants in detention.

     Concerning Article 17 and Article 18 of the EU Commission's Amended Proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status of 3 July 2002.

     JRS-Europe urges the EU Member States to ensure that a future EU Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status complies with International Public Law, especially with Article 31 of the Geneva Convention relating to the Status of Refugees; there is strong legal evidence that the way in which Article 17 (2) and (3) are/were formulated might be in breach of Article 31 of this Convention.

     JRS-Europe urges the EU Member States not use vague formulations only in order to fulfill political time requirements of Article 63 of the 1999 Amsterdam Treaty, which says that "the Council (...) shall, within a period of five years after the entry into force of the Treaty of Amsterdam, adopt (...) minimum standards on procedures in Member States for granting or withdrawing refugee status".

     JRS-Europe reminds that Article 63 of the 1999 Amsterdam Treaty states, too, that these measures must be "in accordance with the Geneva Convention (...) and the Protocol of 31 January 1967 relating to the status of refugees and other relevant treaties." Vague formulations leave room for interpretation to the detriment of asylum seekers and thus could lead to the detention of asylum seekers in almost all cases and violate the Geneva Convention.

     JRS-Europe generally supports the changes made by the EU Council for Justice and Home Affairs in June 200357, which say, "Member States shall not hold a person in detention for the sole reason that he/she is an applicant for asylum. (...) Where an applicant for asylum is held in detention, Member States shall ensure that there is the possibility of speedy judicial review." However, J JRS-Europe would prefer to see it stated that asylum seekers should generally not be detained, in particular especially vulnerable people, absent compelling reasons to the contrary.

     To relevant EU Institutions
     JRS-Europe addresses the appeal concerning Article 17 and Article 18 of the EU Commission's Amended proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status also to the EU Commission and the European Parliament.
     JRS-Europe urges relevant EU institutions not to promote the use of detention.

     JRS-Europe urges relevant EU institutions not to promote detention as a deterrent or as a reception or return policies element that is applied in a systematic and general way because in an "area of freedom, justice and security" there is no place for systematic restrictions of human rights.

     JRS-Europe urges relevant EU institutions not to promote the detention of asylum seekers and other people applying for a status until a final decision is made, as this is the only way to ensure the right of a fair asylum procedure by enabling applicants to easily consult a lawyer or a refugee organization of their choice and confidence in order to obtain legal advice and avoid re-traumatization and intimidation.

     JRS-Europe urges relevant EU institutions to influence the governments and legislators in European States, which detain refugees and migrants, to make sure that such detention is as short as possible, and should never exceed a total time period of two months, be it in one or multiple periods of detention even after release or transfer to another centre. This suggestion of a maximum time period should not be used as a justification to detain or to increase any maximum duration of less than two months under current legislation. In case a person cannot be returned within this two-month period and therefore must be released, he/she must not be left in an illegal status and/or destitute. These are requirements of the Principle of proportionality.

     JRS-Europe asks journalists for their support in all the above-mentioned matters, asks them to investigate and report on detainees and detention in Europe.

End of bulletin:

Source for this Message:
JRS-Europe
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