Alternatives as fiction? What the EU Pact on Migration and Asylum means for Alternatives to Detention

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EU Ministers responsible for Justice and Home Affairs met in Luxembourg to discuss, amongst other issues, reform of the EU’s approach to asylum and migration. Their discussions resulted in an agreement on two key files – the asylum and migration management regulation and the asylum procedure regulation. Almost three years since the European Commission published its proposal for a New Pact on Migration and Asylum, progress on moving forward the proposals contained within the Pact has been uneven. Following lengthy discussions within the European Parliament, a Roadmap published by the co-legislators in September 2022 set out their joint commitment to adopt the legislative proposals within the Pact before the end of the 2019-2024 legislative period. Sweden, which held the Presidency of the Council of the European Union from January to June 2023, expressed its intention to “advance the negotiations on a Pact on Migration and Asylum.” It now looks like an agreement may be in sight.

In recent months, Linklaters LLP and International Detention Coalition (IDC) undertook an analysis of the provisions laid out within the Pact in order for IDC to better understand the implications when it comes to the viability of alternatives to immigration detention (ATD), should the provisions outlined be agreed upon and implemented. Given the recent movement made on the Pact, we set out below IDC’s summary of findings based on that legal analysis, in order to shed light on the consequences of the Pact for the continued viability of ATD in the EU. You can access the original research report undertaken by Linklaters LLP for IDC here.

Detention in the Pact proposals

The effect that the Pact is likely to have on the use of detention in the EU is already well-documented. The International Commission of Jurists has pointed out that “prolonged immigration detention will inevitably result as a practice”, and the Platform for International Cooperation on Undocumented Migrants has concluded that the proposals set out within the Pact will result in “more detention, fewer safeguards.”

Detention within the Pact is largely set out within the Screening Regulation and the Amended Asylum Procedures Regulation. These two instruments outline a new screening process for individuals at external borders and establish border procedures for processing asylum applications and facilitating returns.

The European Commission itself has affirmed that border procedures “imply detention.” The new Pact proposals therefore undermine the principle that detention should only be applied as a measure of last resort; instead, depriving people of their liberty at the borders is set to become the default approach.

For those who are refused asylum, the border procedure may mean being detained for up to 6 months at the EU’s borders and, in exceptional situations, procedures can be extended – meaning that people may spend up to 10 months in detention at the border.

The proposed changes serve to deny people full access to their rights by creating a situation whereby they are not considered to have legally ‘arrived’ in an EU Member State despite being physically present on the territory – a practice dubbed the ‘fiction of non-entry’. Moreover, the proposed border procedures will likely apply to children aged 12-18, meaning that children will also be detained. This is in direct conflict with the commitment set out within the Global Compact for Migration (GCM) – signed by the majority of EU Member States – to work towards ending immigration detention of children.

These proposals are not without their critics, and indeed have been sticking points during the long negotiations in the European Parliament. During an early debate in Parliament, MEPs raised concerns around border procedures and in particular pointed to the likelihood that border procedures would resemble policies implemented in Greece that have led to widespread deprivation of liberty or de facto detention.

Viability of ATD within the Pact proposals

The table below outlines the key aspects of the proposed legislative instruments contained in the Pact (as of June 2023) which are of relevance to the viability of ATD.

Whilst the Pact’s legislative instruments do not expressly refer to ‘alternatives to detention’, some references are made to ‘less coercive’ and ‘less coercive alternative’ measures. This reflects existing language in the Return Directive and Reception Conditions Directive. Moreover, it is implied that immigration detention will continue to be used only as a last resort, in line with regional and international legal standards, and that alternatives will be considered before detention.

However, despite this intention it is difficult to see how the provisions of the Pact – as currently drafted – would allow for community-based ATD in practice.

It is particularly difficult to envisage how Member States will be able to implement ATD while ensuring the “fiction of non-entry” is upheld – after all, how can states place migrants within the community if they do not acknowledge their legal presence in the country? ATD will be particularly challenging if other Member States follow the approaches already being taken in Greece (given apparent similarities between Greek national law and the Pact), Italy and Spain, where border procedures have resulted in de facto detention as standard. Indeed, according to the European Parliament Research Services Study on the Pact:

the blanket non-entry policies for all migrants (during screening, thus including refugees), or particular categories of migrants (in case of the mandatory border procedure or for rejected asylum seekers in the return border procedure), makes it impossible to ensure compliance with the guarantees in the Reception Conditions Directive and the Return Directive.”

Simply put, the fact that an individual can physically arrive in a country without being considered to have legally arrived, will inevitably result in considerable restrictions on freedom of movement and access to services – and this deprivation of liberty is at odds with the idea of ATD.

Ensuring meaningful alternatives to immigration detention

Enshrining ATD in legislation and policy provides an important safeguard against the use of detention. At present, EU Member States can only detain migrants if effective alternatives are not available – this serves to ensure that governments are not detaining individuals in a manner that is arbitrary, unnecessary and disproportionate.

Yet in the current framework of the EU Pact on Migration and Asylum, which by its very nature is likely to introduce widespread and indiscriminate detention of people in the context of expanded border procedures, it is difficult to see how such procedures will function without resorting to de facto detention. In this context, legal requirements to use ATD will be unlikely to work in practice.

With the Council position on the Pact now clear, trilogue negotiations are beginning in earnest as the co-legislators aim to reach a conclusion by early 2024. It is vital that the negotiations keep existing regional and international legal standards front and centre, particularly when it comes to the right to liberty. In order to do this, ATD must be included as a meaningful way to ensure that immigration detention is only ever a last resort, with concrete possibilities for community-based ATD identified.

Our analysis shows that this will be challenging, but the alternative – large-scale, *de facto *detention at the borders for extended periods of time – is unthinkable.

Source : RW