Detention in Europe
All around Europe governments hold migrants in detention centres, cutting them off from the rest of society. Migrants may be detained for a variety of reasons: if they arrive to an EU country without a visa, if they submit an asylum application or while they await deportation to their country of origin.

Detention centres have the look and feel of prisons. The windows and entryways are barred, migrants must follow a strict daily schedule, and the perimeters of the centre are lined with high walls or fences topped with barbed wire. Detention centres vary in size and quality. Some hold only 30 people while others as many as 200. Some centres are always clean and well maintained, while others centres are totally unsuitable for anyone to live in.

Most people who are detained feel like they are treated as criminals, even though they have not committed a crime. People often do not know when they will be released from detention, nor can they regularly communicate with family, friends and relatives. Detained persons have trouble following up on their immigration cases because they either do not get information, or they are unable to meet with a lawyer regularly enough to feel well informed.

Detention harms nearly everyone who experiences it. Research we have done shows that the vast majority of detainees suffer from physical and mental health ailments, such as chronic insomnia, loss of appetite and symptoms related to severe depression and anxiety. Relatively healthy people become vulnerable to harm in a detention centre, whether they are detained for as little as one month or as much as one year.

More often than not, it is unnecessary for governments to put people in harm's way by detaining them. Instead of putting people into detention, governments can instead allow migrants to live in the community. These are called 'alternatives to detention'. There are plenty of examples from around the world - and even in Europe -which show that alternatives to detention not only uphold the human dignity of migrants, but they are more cost effective for states.


  • Reports
  • Advocacy
  • Vulnerability
  • EU Policy
  • Alternatives to detention
Reports

From Deprivation to Liberty (2011)
The negative effect of upon migrants has been well-documented by researchers and NGOs, as well as by policymakers and politicians. The financial cost of detention, together with the severe damage it inflicts on migrants, begs a fundamental question: are there not more cost-effective and humane ways for states to manage migration flows into their territories? In this report, JRS Europe analyses alternatives to detention and their affect on migrants by interviewing migrants themselves. It finds that community-based alternatives to detention is far more humane than putting migrants into detention centres, especially when such programmes offer comprehensive support. And in addition to the improved human impact, alternatives prove to be much less expensive than detention. 


Becoming Vulnerable in Detention (2010)

Detention negatively affects nearly everyone who experiences it. People who enter a detention centre in a relatively healthy state find that after just a few weeks their physical and mental health begins to deteriorate. This study, based on interviews with 685 asylum seekers and irregular migrants detained in 21 countries, analyses the impact of detention on the individual. It shows that detainees suffer from high levels of isolation from the outside world, as well as severe symptoms of depression and anxiety. A lack of information and language barriers exacerbate these conditions. Without question, being held in a detention centre makes someone more vulnerable to harm. 







What do we advocate for?

Detention should only be used as a last resort, if at all, under exceptional circumstances.
Asylum seekers should not be detained during their asylum procedure. Detention shouldn't be used as a deterrent to discourage people from migrating or seeking asylum. If detention cannot be avoided, it should be based in law and meet all legal criteria of necessity and proportionality.

Community-based alternatives should always be exhausted before resorting to detention
Research shows that in the vast majority there is no need to put migrants in detention: successful outcomes can be achieved even when migrants are living independently in the community, with adequate support. Alternatives to detention that use case management show high rates of success in that few migrants abscond from the authorities, and cases are resolved in a more dignified and fair manner.

Vulnerable persons need special attention and care
Unaccompanied minors, including age-disputed minors, should never be detained. Other vulnerable groups such as families with children, pregnant women, torture victims and persons with medical illnesses shouldn't be detained either; if they are, then they should be kept in appropriate and separate facilities, with access to all necessary care.

Detainees must have access to judicial oversight and review, as well as reliable legal assistance.
Detention should only be ordered by a judicial authority. In cases where this is not possible, then a person's detention order should be subject to regular review by a judge at least once every 30 days. Detainees should have access to reliable legal assistance so they can understand their rights and obligations, including opportunities to challenge their detention.

Living conditions should be of a good standard, and the period of detention kept as short as possible.
Conditions such as nutrition, accommodation, health care, privacy, means of communication, outdoor and leisure activities should comply with basic human rights standards, and not resemble a prison environment. Time periods of detention should be kept as short as possible, and not exceed two months.

Access to the 'outside world' should be available, and detention centres should remain open to monitoring bodies.
Detainees should be able to receive visits from family, relatives, friends, NGOs, lawyers, social and pastoral counselors and others who can offer support. Internet and telephone access should be readily available. Representatives of the UN Refugee Agency (UNHCR) and other official monitoring bodes should have access to centres at all times, and to detainees as well. EU and national monitoring mechanisms should be established in order to ensure regular oversight of detention centres.
Becoming Vulnerable in Detention

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It is no longer a question that detention seriously harms virtually anyone who experiences it. Scientific studies of detained asylum seekers show that detention leads to the build-up of clinically significant symptoms of severe depression, anxiety, post-traumatic stress disorder and even self-harm, all of which are significantly related to the length of detention. Detained children have been shown to suffer from developmental delays and emotional disturbances. 

In 2010 we released a study of our own that not only corroborates the findings of the scientific literature but adds empirical weight to our daily detention-visiting experiences. This research, published in the report Becoming Vulnerable in Detention, is based on a large sample of detained persons interviewed in several EU countries. Primarily it shows detention to be both damaging to people's physical and mental health.

OUR RESEARCH

During 2009 and 2010 we and several other NGO partners interviewed 685 detained asylum seekers and irregular migrants in 21 EU countries. Initially wanted to assess how persons with pre-defined vulnerabilities – pregnant women, minors, trauma victims, the physically ill – fare in detention centres. Yet as we collected interviews and analysed the data, we realised that there is much to be said for how detention affects people who do not fit into these categories, namely young and single men who come to Europe without any pre-existing conditions. Though this group makes up the bulk of persons detained in Europe, they are often ignored in policy measures that address vulnerability. 

Practically any person who is detained is made more vulnerable to physical and mental health harm. This is true for a person with pre-existing trauma as it is for someone who arrived to Europe relatively healthy. Although the conditions of a detention centre is an important measure of how a person is affected, the reality is that even in the best of conditions people experience a deterioration in their well-being that makes them susceptible to a range of negative consequences. A person’s level of vulnerability in detention centre increases as the length of detainment endures. From our research we identified three primary factors that influence a person’s exposure to harm in detention.

1) Personal factors such as a person's language capacity, how well informed they are about immigration procedures, and the state of their mental health.

2) Social factors such as how well one is connected to family, relatives and friends in the outside world; Internet and telephone restrictions, frequently used in detention centres, that isolate detainees from the outside.

3) Environmental factors such as the prison-like architecture of a detention centre, and the length of their detainment. Of those we interviewed, 79 per cent did not know when they would leave detention -- a standard that is far worse than for imprisoned criminals.

Each of these factors can either help someone to be resiliant in detention, or can make them vulnerable to harm. For example, detainees who do not speak the same language as the guards are vulnerable to verbal and physical abuse. Detainees who do not know when they will be released suffer from ever-worsening symptoms of anxiety and severe depression. People who are not able to take contact with family and friends on the outside face greater difficulties with getting information about their case. Being detained in a facility with barred windows and entryways, surrounding by high walls topped with barbed wire, gives the impression that one is a criminal, which further increases people's level of stress.

EU Policy: Who can be detained?

Rules for immigration detention are broadly set out by EU policy agreed upon by the European Parliament and the Council of the EU. These rules are common standards that EU governments must apply in each of their countries, though nothing precludes a government from having better standards on detention. 

There are different detention rules for asylum seekers and for irregular migrants in removal procedures.

ASYLUM SEEKERS

Common EU rules on detaining asylum seekers are contained in the Reception Conditions Directive (RCD), which applies to all persons who have submitted an asylum application in the EU (except applicants in the United Kingdom, Ireland and Denmark, countries who have "opted out" of this directive). 

According to this law, EU member states cannot detain a person just because he or she is an asylum seeker. Neither can they detain an asylum seeker without first using less coercive alternative measures, and without first individually assessing the person's case. 

Nevertheless, the RCD does allow member states to detain asylum seekers -- as a last resort -- in these situations: 

  • To verify identity or nationality
  • To determine the elements on which the asylum application is based which could not be obtained in the absence of detention, in particular if there is a risk of absconding
  • To decide on the person's right to enter the state's territory
  • When a person is subject to a removal procedure under the Return Directive, and when there are reasonable grounds to believe that the person makes an asylum application solely to frustrate or delay the return process
  • When national security/protection so requires
  • In accordance with the Dublin Regulation

Detainees are to be kept for "as short a period as possible" and have access to a judicial review. Detainees must be immediately informed in a language they understand, or are reasonably supposed to understand, the reasons for their detention and the possibilities for challenging their detention.

Detainees must have access to free legal assistance, though member states can set certain conditions for the provision of free legal assistance.

Detention must take place, as a rule, in specialised detention facilities. When this is not possible, detention may be done in prisons, but applicants must be kept separate from ordinary prisoners. Asylum detainees should be kept separate from migrants who are not applicants. They must have access to open air spaces, and to UNHCR, NGO personnel, family, counsellors and legal advisers. Detainees must have access to information in a language they understand, or can reasonably understand, about the conditions of their detention and the rules of the facility.

Vulnerable persons and those with special needs must be especially monitored by member states. Minors can be detained only in places that are suitable for minors after less coercive measures are used, and when it is based on their best interests. Unaccompanied minors can be detained in age-appropriate facilities, but never in prisons. Female detainees must be kept separate from males, unless they are part of a family.


IRREGULAR MIGRANTS IN REMOVAL PROCEDURES

People who are in Europe without a visa, and who are not asylum seekers, are usually put into detention if they are intercepted by government authorities. While they are in detention, the authorities work to have them removed to their country of origin. This is the most frequent kind of immigration detention in Europe.

In 2008, the EU adopted common rules for the removal of irregular migrants from Europe, known as the Return Directive. According to this law:

  • Detention should be limited and subject to the principle of proportionality, and its use is only justified to prepare return or to carry out the removal process, and if the application of less coercive measures would not be sufficient 
  • Third country nationals in detention should be treated in a humane and dignified manner with respect for their fundamental human rights
  • Detention should take place in specialised detention facilities 
  • Unless other sufficient but less coercive measures can be applied effectively in a specific case, member states may only detain someone who is subject to return procedures in order to prepare the return, or to actually carry it out, particularly if there is a risk of absconding, or if the person hampers the removal process 
  • If a reasonable prospect of removal no longer exists, then detention ceases to be justified
  • Detention may not exceed six months, and only as long as removal arrangements are in progress. This can be extended by 12 months is there is a lack of cooperation from the third country national, or if there are delays in obtaining necessary documentation from third countries 
  • Special attention should be given to vulnerable persons 
  • Unaccompanied minors and families with minors are to be detained only in the last resort, and for the shortest appropriate period of time 
  • Detained families will be kept separately and be given adequate privacy
Resolving people's cases in the community, rather than in detention

It is no longer a question that detention seriously harms nearly everyone who experiences it. Detainees suffer from severe anxiety and depression, as well as insomnia, loss of appetite and even bacterial infections in detention centres with unhygienic conditions. Apart from being harmful, detention also ruins people's sense of dignity. They feel like they are criminals, even though they have not committed any crime.

Putting people in harm's way by detaining them is unnecessary, because governments can instead resolve people's immigration cases in the community. What we and others often call 'alternatives to detention' is simple in its premise: rather than putting people in a detention centre, the government accommodates them in an open environment in the community. Their rights to liberty and dignity are better respected. People feel more at ease living in a community than in a prison-like detention centre. Families and children experience much less stress. Furthermore, it is more cost-effective for governments to deal with people's cases in the community.

WHAT ARE ALTERNATIVES TO DETENTION?

There are many ways in which a government can implement an alternative to detention. Most are run by governments by some too by NGOs. The key factor that makes an 'alternative' is that it must be a community-based measure, and it must not deprive a person of their liberty and rights to free movement. Some examples that are typically used include:

Regular monitoring: A person may be released from detention on the condition that he or she regular reports to the immigration authorities, either multiple times per week or for as little as once per month.

Provision of a guarantor or surety: Someone comes forth and claims responsibility for a released detainee, who must ensure their presence at meetings, court appointments and so forth. If the released detainee does not follow the rules, then a fine is levied against the guarantor.

Release on bail: A person is released from detention if another individual pays a specific amount of money set by a judge.

Accommodation in 'open centres': These are typically non-secure facilities that host asylum seekers. People are free to come and go, but usually within a particular time of the day. This may be coupled with monitoring requirements.

Case management: Individuals live independently in the community and are attached to a case manager, who usually works for the immigration authorities. The case manager follows the persons case and provides comprehensive support. Needs assessment, risk screening, case planning, interventions and ongoing reviews are the hallmarks of case management.

WHAT DOES EU POLICY SAY?

There is no common EU law regulating 'alternatives to detention'. It is left to individual member states to decide whether to apply these and how. However the Return Directive does stipulate, in Article 15.1, that governments should only use detention when "other sufficient but less coercive measures" have been used.

Since the Return Directive came into force in 2010, all but one EU country has written alternatives to detention into their national laws. But few actually implement them. Governments fear that migrants might abscond if they are not detained. These fears are largely baseless. Evidence shows that so long as alternatives to detention treat migrants fairly and with dignity, most are willing to cooperate with governments even if it means returning to their country of origin.

DOES JRS HAVE A POSITION ON THIS?

In 2012, JRS in Europe adopted a policy position on alternatives to detention. It is the outcome of several years experience with visiting people in detention centres, and based on our research which shows the harmful effects of detention.

ADDITIONAL RESEARCH

Much as been researched about alternatives to detention, but usually from an institutional perspective and not from the perspective of migrants themselves. This is why in 2011 we published our own study, From Deprivation to Liberty, based on interviews with migrants participating in alternative to detention programmes in Belgium, Germany and the United Kingdom.