ALTERNATIVES TO IMMIGRATION AND ASYLUM DETENTION IN THE EU

ALTERNATIVES TO IMMIGRATION AND ASYLUM DETENTION IN THE EU

TIME FOR IMPLEMENTATION

PHILIPPE DE BRUYCKER (ED.) ALICE BLOOMFIELD EVANGELIA (LILIAN) TSOURDI JOANNA P?TIN

A network coordinated by the Institute for European Studies of the Universit? Libre de Bruxelles (ULB) The MADE REAL project was co- funded by the European Union

ALTERNATIVES TO IMMIGRATION AND ASYLUM DETENTION IN THE EU

TIME FOR IMPLEMENTATION

PHILIPPE DE BRUYCKER (ED.) ALICE BLOOMFIELD EVANGELIA (LILIAN) TSOURDI JOANNA P?TIN

This report was published in January 2015.

National research was conducted until April 2014 and information at EU level collected until November 2014. The report can be downloaded on the Odysseus Network website: http:// odysseus-network.eu

This project has been funded with support from the European Commission. This publication reflects the views only of the author, and the European Commission cannot be held responsible for any use which may be made of the information contained therein.

This report is one of the outcome of the MADE REAL project (Making Alternatives to Detention in Europe a Reality by Exchanges, Advocacy and Learning) coordinated by the Odysseus Academic Network in partnership with :

iPRIS Institut za pravno raziskovanje, izobrazevanje in svetovanje

iPRIS

iLREC Institute for Legal Research, Education and Counseling

iLREC

CENTER FOR SUSTAINABLE SOCIETY LITHUANIA

This report was edited by Prof. Philippe De Bruycker, Professor at the Institute for European Studies of the Universit? Libre de Bruxelles (ULB), scientific coordinator of the MADE REAL project. It was authored by: Alice Bloomfield, Consultant on migration and asylum issues; Evangelia (Lilian) Tsourdi, PhD candidate and researcher at the Universit? Libre de Bruxelles (ULB); Joanna P?tin, PhD candidate and researcher at the CEDRE, university of Pau et des pays de l'Adour.

Research at national level was undertaken by:

MEMBER STATE ODYSSEUS ACADEMIC NETWORK NGO PARTNERS

AUSTRIA BELGIUM

Ulrike Brandl Pierre d'Huart and Sylvie Sarol?a

Christoph Riedl and Christoph Steinwendtner (Diakonie Fluchtlingsdienst)

Beno?t de Boeck (CIRE)

LITHUANIA

Lyra Jakulevicien

Vladimiras Siniovas and Vilma Ivankevicit (CSS)

SLOVENIA

Katarina Vucko

Sasa Zagorc and Katarina Podlogar (ILREC)

SWEDEN

Aleksandra Popovic

Alexandra Segenstedt (Swedish Red Cross)

UK

Elspeth Guild

Sarah Campbell (BID)

Acknowledgments: We would like to thank Paul McDonough for reviewing the report. We would also like to thank Andrea Vonkeman and Marie Huberlant (UNHCR), Jem Stevens and Ben Lewis (IDC), Kris Pollet and Caoimhe Sheridan (ECRE) and Sergo Mananashvilli (Migration Policy Centre, EUI) for their valuable comments throughout the project. We do not forget our Secretary Nicole Bosmans for her help and our colleague Laurence Debauche who was involved in the preparation of the application for funding of this project. Finally, we would like to thank the European Commission for its support to carry out this project.

Designer: Aikaterini Chronopoulou ? aika-

TABLE OF CONTENT

INTRODUCTION

Background

7

Purpose and scope of the study

7

Material scope

8

Geographical scope

9

Temporal scope

9

Methodology

9

Structure of the research team

10

Outline of the main research methodology

10

Report outline

11

CHAPTER 1

DEFINING ALTERNATIVES TO DETENTION IN THE CONTEXT OF MIGRATION AND ASYLUM

1. CONTEXT

14

1.1. What is immigration detention?

15

1.2. Detention and the criminalisation of migration

19

1.3. Why alternatives to detention?

21

2. THE LEGAL FRAMEWORK ON ALTERNATIVES TO DETENTION

27

2.1. Applicable treaties

28

2.2. Freedom of movement as a principle and permissible restrictions

29

2.2.1. Analysing the provisions of the ICCPR and the 1951 Refugee Convention 29

2.2.2. Examining the ECHR

32

2.2.3. Assessing the system of the RCD and its recast

34

2.3. Right to Liberty and Security: Detention as an exception

36

2.3.1. Protection against arbitrary deprivation of liberty

36

2.3.2. The notion of "arbitrariness"

38

2.3.3. The principles of necessity and proportionality

39

2.3.4. The specific case of "return" detention

41

2.3.4.a. Pre-return detention in the ECHR

43

2.3.4.b. The detention framework of the Return Directive

43

2.3.4.c. Focus on the obligation to examine alternatives to detention

44

2.3.5. Detention of asylum seekers

45

2.3.5.a. The norms under the 1951 Refugee Convention and the ICCPR

45

2.3.5.b. The position of the ECHR and the European Court of Human Rights 46

2.3.5.c. The detention framework of the recast

Reception Conditions Directive (RCD)

48

2.3.5.d. Testing the compatibility of the grounds

with Member States' obligations

49

2.3.5.e. The obligation to examine alternatives to detention

55

2.3.6. The necessity to take into account vulnerability

56

3. DEFINING ALTERNATIVES TO DETENTION

59

3.1.Existing definitions of alternatives to detention

59

3.2.Definition of alternatives to detention in eu law

61

CHAPTER 2

IMPLEMENTATION OF ALTERNATIVES TO DETENTION IN SELECTED MEMBER STATES

1. ANALYSIS OF DECISION-MAKING ON ALTERNATIVES TO DETENTION

66

1.1. The existence of a ground for detention

66

1.1.1. Focus on the risk of absconding

69

1.2. The necessity and proportionality requirements

71

1.2.1 The obligation to conduct an individual assessment

74

1.2.2. Detention as a measure of last resort

75

1.2.3. The assessment of vulnerability

75

1.3. Right to an effective remedy

80

2. SCHEMES CURRENTLY USED AS ALTERNATIVES TO DETENTION

87

2.1. Reporting

89

2.2. Sponsorship by a citizen of the country or by a long-term resident

92

2.3. Personal financial guarantee

95

2.4. Designated residence

96

2.4.1. Reception centres for asylum seekers

96

2.4.2. Publicly run centres with or without a coaching component

97

2.4.3. Centres for unaccompanied minors

101

2.4.4. Private accommodation

101

2.5. Electronic tagging

102

3. ACCESS TO RIGHTS FOR INDIVIDUALS PLACED UNDER ALTERNATIVES TO

DETENTION

104

3.1. Access to social and economic rights 3.2. Access to information 3.3. Access to (free) legal assistance

105 109 111

4. MONITORING AND STATISTICS

113

CONCLUSIONS

116

1. HIGHLIGHTS FROM THE RESEARCH FINDINGS

110

2. ALTERNATIVES TO DETENTION: TOWARDS AN EFFECTIVE IMPLEMENTATION 119

RECOMMENDATIONS

122

ANNEX 1: COUNTRY PROFILES

127

A. AUSTRIA

127

B. BELGIUM

130

C. LITHUANIA

134

D. SLOVENIA

139

E. SWEDEN

143

F. UNITED KINGDOM

147

ANNEX 2: LIST OF ABBREVIATIONS

155

INTRODUCTION

INTRODUCTION

BACKGROUND

This research is an integral part of the project MADE REAL (`Making Alternatives to Detention in Europe a Reality by Exchanges, Advocacy and Learning'), which is co-financed by the European Commission. The project was coordinated by the Academic Network for legal studies on asylum and immigration in Europe (the `Odysseus Academic Network'), and was implemented together with 13 non-governmental organisations in 13 Member States of the EU: Diakonie Fluchtlingsdienst (Austria), Coordination et initiatives pour et avec les R?fugi?s et Etrangers (Belgium), Legal clinic for Refugees and Immigrants (Bulgaria), France Terre d'Asile (France), Greek Council for Refugees (Greece), Hungarian Helsinki Committee (Hungary), Centre for Sustainable Society (Lithuania), Jesuit Refugee Service (Malta), Justitia et Pax Nederland (the Netherlands), Slovak Humanitarian Council (Slovakia), Institute for Legal Research, Education and Counselling (iLREC) (Slovenia), Swedish Red Cross (Sweden) and Bail for Immigration Detainees (the UK). An advisory group made up of UNHCR and the European Council on Refugees and Exiles (ECRE) provided structured input at different stages of the project cycle.

The main objectives of the project were to address a knowledge and implementa-

7

tion gap concerning alternatives to immigration detention in the EU, paying particular

attention to (vulnerable) asylum seekers, to assist Member States in the transposition

of the recast Reception Conditions Directive (RCD) and to enhance the use of alterna-

tives to detention that comply with EU and international legal standards.

The project entailed:

? a phase of research in 6 EU Member States (Austria, Belgium, Lithuania, Slovenia, Sweden and the United Kingdom) on the national legal framework and practices with regards to alternatives to detention, which culminated with the publication of this synthesis report and a training module, as well as

? a phase of training in 7 Member States (Bulgaria, France, Greece, Hungary, Malta, the Netherlands and Slovakia) using the national version of the training module developed.

The main project findings were disseminated in an EU-wide conference in Brussels in February 2015.

PURPOSE AND SCOPE OF THE STUDY

This research constitutes a significant pooling of knowledge on the law and practice on alternatives to detention in 6 EU Member States (Austria, Belgium, Lithuania, Slovenia, Sweden and the United Kingdom). In addition, it includes legal research on the scope of Member States' obligations to implement alternatives to immigration detention under international, European (i.e. Council of Europe) and EU law. It

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