Immigration detention in transit zones : what European courts say

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Immigration detention is understood as the deprivation of liberty of a person because of their migration status. In the EU, states typically apply immigration detention to prevent entry to their territory, to carry out return/deportation procedures, during asylum procedures, and in the context of Dublin transfer procedures.

Currently, immigration detention mostly happens in prison-like centres that are located in the territory of the state. But in certain cases, people may be detained in so-called “transit zones” at the state borders or in airport terminals. At land state borders, people have been detained, for instance, in buildings similar to detention centres or in prefabricated housing; in airports, people are generally detained in lounges, airport police cells, or in buildings next to the airport itself.

Often, states do not officially consider detention in transit zones as immigration detention, or deprivation of liberty. This means that this type of detention is less regulated than the one that happens in “traditional” immigration detention centres, and often comes with less safeguards. But European courts, such as the European Court of Human Rights and the EU Court of Justice, have indicated how this practice should be controlled.

In different cases, the European Court of Human Rights (ECtHR) stated that holding persons at airport transit zones, beyond short-term restrictions at entry points to check identity or verify the right to enter the country, would amount to deprivation of liberty. In these cases, the ECtHR was not satisfied with the claim advanced by states that applicants could leave the transit zone by leaving the country, as this would typically involve practical and legal difficulties.

With regard to land border transit zones, the ECtHR did not exclude such possibility, however, it also clarified that several conditions need to be met, including that the neighbouring country from which the person entered should be a party to the European Convention on Human Rights (ECHR) and Geneva Refugee Convention and that there is no immediate danger for the person’s life and health (in the specific case, this was demonstrated by the fact that the person spent a few months in the previous country before crossing the border).

In contrast, the Court of Justice of the European Union (CJEU) does not consider that the applicants have a possibility to leave the transit zone by leaving the country if the entry to the neighbouring country would be irregular and could lead to penalties.

Even if the ECtHR considers that the above conditions are met in the specific case and the person could leave the land border transit zone by going to the neighbouring country, this does not mean that the person is not subject to detention. The Court assesses also other elements, in particular the length of the stay in the transit zone.

In one case, the Court found that the applicants’ stay in the transit zone amounted to de facto detention because of the lack of any domestic legal provisions fixing the maximum duration of the applicants’ stay, the “excessive duration” of that stay (almost four months) and the considerable delays in the domestic examination of the applicants’ asylum claims. The Court also pointed at the conditions in which the applicants were held during the relevant period, notably severe restriction on freedom of movement within the transit zone and one-and-half-month stay in the isolation section of the transit zone where the conditions violated Art.3 of the ECHR.

In one case, the Grand Chamber of the ECtHR found that a 23-day confinement in a land transit zone during the examination of the applicants’ asylum claim with due diligence and in a situation considered a “mass influx of asylum-seekers and migrants,” and subject to domestic provisions limiting stay in transit zone to four weeks, did not violate article 5 ECHR.  Conversely, such measure is to be considered detention under EU law. Assessing the same transit zone, the CJEU ruled that the obligation imposed on a person to remain permanently in a transit zone the perimeter of which is restricted and closed, within which the person’s movements are limited and monitored, and which they cannot legally leave, should be considered detention under EU law. The Court relied on the definition of immigration detention under relevant pieces of EU legislation, as confinement of an applicant by a Member State within a particular place, where the applicant is deprived of their freedom of movement. Regardless of the circumstances, detaining someone because they do not have the right papers to live in the country they are in should never be an option. Detention is always harmful, disproportionate and ineffective.

At PICUM, we are against the use of immigration detention in all circumstances, and we call on Member States and the European Union to put an end to it. An increasing number of international bodies have also stated that detention for immigration control purposes should be progressively ended.

A lot of confusion surrounds the term “detention” in the context of migration. We developed a briefing where we reply to frequently asked questions on the existing legal framework and case law on immigration detention and de facto detention, drawing from the evolving and recent jurisprudence from EU and international bodies. This briefing is addressed to policy-makers working on legal reforms, and civil society organisations advocating for migrants’ rights.