The recent recommendation of the European Commission (EC) on more and longer detention of migrants is likely to lead to human rights violations without furthering other goals, such as facilitating the processing of asylum claims or promoting dignified returns.
EU law allows for a maximum detention period for migrants, including asylum-seekers, of six months, extendable by a period up to 12 months. Several member states’ laws provide for shorter maximum periods, taking into account their obligation under international human rights law to keep the duration of detention as short as possible and only for a period that is strictly necessary to process the return of an individual.
The new EC recommendation is worrying from several standpoints. First of all, recommending states to amend their laws so as to allow for a maximum detention period of 18 months is likely to encourage the use of detention for longer periods. This could put them at variance with European human rights law, as the European Court of Human Rights has underscored that the length of detention should not exceed what is reasonably required for the purpose pursued. Moreover, prolonged periods of detention or uncertainty as to the length of detention may constitute inhuman or degrading treatment, thus violating the European Convention on Human Rights. A second concern is that the EC recommendation to increase member states detention capacity will likely lead to more migrants in detention.
In addition, while the EC recommendation notes that child detention should be a measure of last resort, it nonetheless provides states with leeway to detain children, if “no alternatives exist”. This clashes with the finding of the UN Committee on the Rights of the Child that the detention of migrant children based on their legal status is never in the best interest of the child and therefore violates a key child’s right principle. Moreover, studies show that immigration detention is harmful for adults, but downright traumatic for children. States should always ensure there is an alternative to locking migrant children up.
European states should shift the focus from detention to alternative and more humane measures, which do not deprive migrants of their liberties and are child and family friendly. Many good practices exist, allowing migrants to stay in communities, combined with individual case management. If necessary, restrictions such as regular reporting or confiscation of documents may be applied too. These are far more effective and less costly measures that would avoid violating migrants’ rights and allow the state to keep track of them while processing their case.
States have the right to return people who do not qualify for international protection, but they must do so while upholding human rights norms. In their meeting in Brussels today, EU heads of state and government should focus on alternatives to detention that can help strike the right balance between the legitimate need to control migration and the moral and legal duty to avoid violating the human rights of migrants.