Supporting people through migration

Resolving cases in the community

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Few rights have been so universally invoked as the right to liberty. And yet, in the European Union, more than 100,000 people are deprived every year of their freedom only because they do not have the right administrative papers. Despite clear international standards strictly regulating and limiting deprivation of liberty, our migration enforcement systems rely on immigration detention to control and deter undocumented migrants, Immigration detention is even applied to children, people with health issues and other vulnerabilities.

 

But it doesn’t have to be like this. More humane and more effective alternatives exist.

 

Ample evidence shows that community-based alternatives to detention work. Case management in particular provides people with holistic support and the information they need to engage with the migration procedures, while ensuring that they can remain in the community in which they live. These programmes need to be further scaled up, to replace – and not flank – immigration detention.

 

Find out how this works below.

What are community-based alternatives to detention? Do they work?

 

Community-based alternatives to detention allow people to live in the community while working on their migration procedures. Contrary to enforcement-based alternatives, which aim to control, restrict and deter migrants, community-based alternatives are grounded on engagement and holistic support. Provision of case management is one of the key components of these alternatives.

 

Individuals are more likely to comply with migration decisions if they are treated fairly, they can meet their basic needs and all available options have been considered. Evidence from over 60 countries shows that community-based alternatives are more effective, humane and cheaper than detention.

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What is case management? And how does it work?

 

Case management allows migrants to receive holistic support and receive the information they need to take active steps towards the resolution of their case.

 

Unlike other programmes focused merely on return, case management provides the possibility for the participant to explore all options of case resolution. This can include obtaining a visa, applying for a regularization scheme, re-migration or voluntary return.

 

The case manager, who is not a decision-maker, develops a one-to-one working relationship with people, supporting and empowering them to engage fully with immigration procedures to work towards the resolution of their case. The case manager facilitates contacts between the people and relevant stakeholders (e.g. health professionals, legal advisors and authorities), while monitoring the development of the case as well as the person’s wellbeing. The approach is based on a trust relationship between the case manager and the client, so that people feel supported and sufficiently informed to explore all options throughout their migration process.

Is case management already happening in the EU?

 

In the past years, there has been growing practice on case management-based alternatives to detention (ATDs) in Europe, with governments, local authorities and civil society organisations developing new programmes in a number of states. The European Alternatives to Detention Network – a group of European and national-level NGOs which aims to reduce and end immigration detention and foster engagement-based alternatives – has been working in Belgium, Bulgaria, Cyprus, Greece, Italy, Poland, the UK to run case management  pilot projects . The Network gathers evidence and learning to support NGOs and governments to develop effective alternatives to detention based on case management.

Does case management work?

 

It does.

 

In Bulgaria, Cyprus and Poland, where three case-management pilot projects were implemented, 99% of the participants were better equipped to take decisions about their migration process and 96% were more able to engage with the immigration procedures over time (i.e. appearing at hearings).

atdnetwork
What does the law say about the detention of undocumented migrants?

The EU Returns Directive (2008) – currently under review – states that alternatives to  detention should always be applied whenever possible. In addition, the European Commission clarified that EU member states should develop and use alternatives to detention, including providing individual coaching (case management).

 

The Court of Justice of the European Union further clarified that detention can only be applied based on the analysis of individual circumstances and is only legitimate as long as there is a reasonable prospect of removal. Entering or staying in Europe irregularly, or the lack of identity documents, is not a sufficient ground for detention.

 

In addition, specific categories of people in situations of vulnerability derive rights from different bodies of international law, such as the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Rights of Persons with Disabilities. In particular:

 

  • Children: UN experts agree that detaining children based on the children’s or their parents’ migration status is always a human rights violation and is never in the best interests of a child.
  • Victims of torture: the former UN Special Rapporteur on the human rights of migrants, François Crépeau, underlined thatvictims of torture are already psychologically vulnerable due to the trauma they have experienced and detention of victims of torture may in itself amount to inhuman and degrading treatment.”
  • Victims of trafficking in human beings: according to the Recommended Principles and Guidelines on Human Rights and Human Trafficking, victims of trafficking in human beings should not “in any circumstances, be held in immigration detention or other forms of custody.”
  • Women: women in detention centres are particularly vulnerable to sexual, gender-based violence and discrimination, especially in the context of male-dominated detention centres.
  • Pregnant women: according to the Working Group on Arbitrary Detention Revised Deliberation No. 5 on deprivation of liberty of migrants  and to the Principles and Guidelines on migrants in vulnerable situations, adopted by the Global Migration Group Working Group on Migration, Human Rights and Gender, pregnant women should not be detained. UNHCR Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum-Seekers, the detention of pregnant women in their final months and nursing mothers should be avoided.
  • Lesbian, gay, bisexual, transgender and gender-diverse persons: as highlighted by the former UN Special Rapporteur on the human rights of migrants, François Crépeau, LGBTI people in detention “can be exposed to social isolation and be subjected to physical and sexual violence, because they are usually held with men.” For this reason, it is recommended that their detention should be avoided.
  • People living with a mental illness: in its General Comment on Article 9, the Human Rights Committee further underlined that “decisions regarding the detention of migrants must also take into account the effect of the detention on their physical or mental health“. In C. v. Australia, the Human Rights Committee found that the protracted detention of an applicant which caused the insurgency of a psychiatric illness amounted to ill-treatment under Article 7 of the ICCPR.
  • People with disabilities: as reported by the former Special Rapporteur on the rights of persons with disabilities “persons with disabilities are significantly overrepresented in mainstream settings of deprivation of liberty, such as prisons and immigration detention centres.” This is contrary to the recommendations of the Working Group on Arbitrary Detention Revised Deliberation No. 5 on deprivation of liberty of migrants  and to the Principles and Guidelines on migrants in vulnerable situations, adopted by the Global Migration Group Working Group on Migration, Human Rights and Gender, which state that persons with disabilities should not be detained.
  • Stateless people: because of their exclusion from consular or diplomatic protection, their frequent lack of documents and the absence of a country to which they can return, stateless persons are a group particularly vulnerable to the risk of prolonged detention.  The Principles and Guidelines on migrants in vulnerable situations, adopted by the Global Migration Group Working Group on Migration, Human Rights and Gender underline that detention of stateless persons should be avoided.
What does the law say about the detention of children?

Children should never be detained. UN experts agree that detaining children based on the children’s or their parents’ migration status is a human rights violation and is never in the best interests of a child. Moreover, well-established evidence shows that even short periods of detention have a long-lasting impact on children’s physical and mental health and their development.

 

The EU is still far from implementing these recommendations in its law, and a number of existing and proposed instruments, including the new EU Pact on Migration, still allow child detention, including potentially for prolonged periods of time.

How many people are being detained across Europe?

Data collected by the Global Detention Project shows that more than 100,000 people are detained for immigration reasons each year in the European Union.

 

These numbers include children, families, and individuals with pre-existing situations of vulnerability, such as physical or mental health diseases, disabilities, and psychological traumas. Detention is imposed, often for repeated or prolonged periods, with the more or less explicit purpose of deterring irregular migration and in order to increase returns – despite broad evidence on both its harmfulness and ineffectiveness.

How many children are detained for immigration reasons?

In the 2019 Global study on children deprived of liberty, Independent Expert Manfred Nowak found that at least 330,000 children are detained throughout the world for migration-related purposes per year.

 

In Europe, 6,555 children were detained in 2016 in the 14 EU countries that provided data. In one case, a child was detained for 195 days. The EU Fundamental Rights Agency has found that EU member States which tend to detain children more often (France, Greece, Malta, Poland and Slovenia) witnessed an increase in child detention between 2018 and 2019.

 

However, countries often do not collect adequate data, and even when they do, the methodologies adopted differ greatly, making any comparison very hard. For instance, in some countries, children who are detained with their parents are not counted separately.

What happens when people are detained?

Several studies indicate that detention has a severe impact on mental health, with studies indicating higher incidence of anxiety, depression and post-traumatic stress disorder than among the rest of the population, and an average of very high levels of depression in four out of every five detainees. In a detention centre in the United Kingdom, 51 % of the detainees were deemed at risk of suicide.

 

Moreover, EU countries regularly detain people in situation of vulnerability, including victims of torture and trafficking in human beings, pregnant women, people living with a mental illness, people with disabilities and stateless people. In these cases, the harmful impact of immigration detention is further exacerbated, and can lead to quick deterioration of people’s mental and physical health.

Is detention effective?

No. There is no evidence that longer detention leads to higher return rates:

 

  • In Greece, the number of detainees strongly increased from 2018 to 2019 from 32,718 to 58,597, with a total increase of 25,879 – however, the number of deportations dropped by 2,908 in the same period.
  • Eurostat data from 2017 further show the lack of correlation between member States’ maximum detention periods and return rates: for instance, Spain’s return rate was 37 per cent with a maximum detention period of 60 days, while the Czech Republic allows for detention up to 183 days, but has a return rate of 11 per cent.
  • These findings were confirmed by the European Implementation Assessment of the 2008 Return Directive, which found that most of the removals take place during initial periods of detention.

 

Moreover, detention does not allow people to meaningfully engage in their migration procedures, for a number of reasons including insufficient or inadequate access to information and interpreters, violation of procedural safeguards, lack of access to medical care and isolation. This harms their chances of reaching durable solutions – may it be a visa, regularization scheme, re-migration or return.

Further information