This blog post was written by Nacho Hernández Moreno, lawyer at the International Affairs Department at Fundación Cepaim, Spain.
The world is currently facing one of the most dramatic and fast developing emergency situations since World War II. Mandatory lockdowns that seemed dystopian just some weeks ago are now widely in place to keep people safe and to slow the spread of COVID-19. Although we’re all affected by the confinement measures, we cannot ignore the already confined migrant detainees. Held in prison-like facilities, and with limited rights, these people face even more vulnerabilities when it comes to public health policies.
Spain is leading the way in releasing migrants from detention centres. The fact that only three persons remain detained and that all but one detention facilities have been closed has brought Spain into the international spotlight of migration detention. The work of non-governmental organisations has been of paramount importance and has confirmed remarks by the United Nations Special Rapporteur on extreme poverty and human rights about the Spanish third sector being “one of the most vibrant” he had ever encountered, following his recent visit to Spain earlier this year.
Immigration detention in Spain
There are eight detention facilities in Spain known as Centros de Internamiento de Extranjeros (CIE, by its Spanish acronym), which are designed to hold persons pending deportation. The law mandates that immigration detention orders can only be issued to ensure the removal of the person concerned, and that migrants can only be held in those centres for up to 60 days [article 62(2)]. If deportation cannot be enforced within that period, they must be released. They may still be expelled eventually, but they cannot be detained again.
Therefore, in principle, all third country nationals without a residence permit can be detained, except for unaccompanied minors pregnant women, and migrants receiving social or incapacity benefits as well as their spouses, minor or dependent children. Minors can also be detained if their father, mother or both parents are detained in order to maintain the family unit [article 62bis(1)i].
The CIE have spurred widespread criticism because of their poor conditions and obstacles faced by social organisations and individuals to monitor their functioning. For instance, the latest report by the Jesuit Migrant Service – Spain (SJM-E) exposed major structural deficiencies in the facilities, such as the lack of proper age assessment procedures (repeatedly highlighted by the United Nations Committee on the Rights of the Child -see Fundación Cepaim Journal XDS Vol. 10, pages 22-24), inadequate medical care, obstacles to seeking asylum, limited communication with the outside world, and difficulties for social organisations, social stakeholders and lawyers to visit the centres. The Spanish Ombudsman expressed similar views and even reported that 88 unaccompanied minors were held in detention facilities in 2018 (para. 80, page 70).
Current state of play
The Spanish government declared the state of emergency on 14 March in order to address the coronavirus pandemic. Initially foreseen for two weeks, it was later extended for another two weeks, and even farther until the end of April. As the country was hit by the virus outbreak, countries started rejecting people arriving from Spain. Once the state of emergency was declared, Spain reintroduced internal border controls. People were mandated to stay home and not to leave the country.
In light of the new circumstances, non-governmental organisations working in the field of detention asked the government and the competent judges to release all migrant detainees. If detention can only be ordered to execute deportations, the practical impossibility to remove people due to the closing of bordersmade detention unlawful. On 19 March, the Spanish Ombudsman stated that the state of emergency places migrant detainees in an even more vulnerable situation and that detention cannot work as a means to the end it is designed for. They cannot be removed, so they must be released. The response by the Spanish Ombudsman cannot be ignored, as it channels civil society organizations’ complaints and plays a major supportive role for those working for the improvement of human rights standards in the country.
The Spanish government has been slow to react, but some judges started releasing detainees soon. The CIE in Barcelona closed its doors on 19 March. When the one in Madrid was emptied on 2 April, the Spanish authorities claimed that all CIE were expected to be closed by 6 April. However, the CIE in Valencia and the one in Murcia continued holding migrants until 8 April and 9 April, respectively. In addition, the CIE in Algeciras remains open as of 16 April with three detainees, despite the fact that on 10 April a high-ranking official within the National Police Corps announced that those migrants would be transferred “within the next days” to “other places”.
The release of detainees was carried out on a case-by-case basis. Persons with relatives who could host them were released first. In case migrant detainees had no family in Spain, they were sent to social organisations that implement reception programmes for undocumented migrants. People released from immigration detention do not have to report back to the authorities and will not be detained again once the state of emergency ends. The entry and stay at civil society facilities are also on a voluntary basis.
Our organisation, Fundación Cepaim, has received some of the people released from detention. We address social and residential exclusion, as well as migrants’ social integration through different projects. Apart from being one of the main organizations managing the national reception system for refugees, asylum seekers and stateless persons, Fundación Cepaim also focuses on the reception of undocumented migrants through its humanitarian assistance project. It is a 3-month long program designed for the social inclusion of undocumented migrants whose deportation cannot be enforced, mainly people from African countries who arrive on the Mediterranean coast. They are accommodated at private apartments and are provided monthly allowances and in-kind support to cover their nutrition and other basic needs. Their integration pathways are supported by a team that includes lawyers, psychologists, mediators, social workers and volunteers. They are provided with legal assistance and information on regularization schemes, as well as Spanish classes to improve their language skills.
Looking beyond the pandemic
Critically, the judge who monitors the CIE in Las Palmas, where two detainees tested positive for COVID-19, ordered the release of migrants on humanitarian grounds validating civil society’s claims about the poor conditions of the detention facilities and the vulnerabilities they create for detainees. In his reasoning, the judge seems to point out that detention in a CIE poses if not greater at least a similar risk to public health than potential homelessness (for those migrants refusing the accommodation provided by social organisations).
Spanish civil society successfully channelled its efforts to end immigration detention in a way that led the government and judges to order the release of people from immigration detention, based on public health concerns and the lack of legal basis for detention. It is now time to build on this momentum to effectively advocate for alternatives to detention that will eventually end migration detention.