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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