Campaigners in Italy are fighting immigration detention by asking doctors to stop declaring anyone fit for detention. We spoke to Nicola Cocco of the Italian Society for Migrations’ Medicine to know more.

In Italy, sending a person to an immigration detention centre requires a doctor’s certificate proving that they are “fit for detention” (conditions are regulated by a 2022 ministerial directive). Often, this certification is done at the emergencies by overworked doctors, with little time and no serious medical check-up. The exam typically lacks the person’s consent and is not accompanied by a cultural mediator. The result is that doctors often merely certificate that the person does not have communicable diseases.

Most times, police are present for the whole duration of the exam. In some cases, the doctors performing the “fit for detention” exam are hired by the immigration detention centres themselves.

At the start of 2024, civil society organisations led by the Italian Society for Migrations’ Medicine (Società Italiana di Medicina delle Migrazioni, SIMM), the network “No More Lager” (Mai più lager – No ai CPR), and the Italian Association for Legal Studies on Immigration (Associazione per gli Studi Giuridici sull’Immigrazione) launched a campaign to stop doctors from declaring people “fit for detention”. In this campaign, the associations link the health risks of immigration detention with the ethical risks faced by doctors when sending someone to a place of harm.

The immigration detention centres are often unhealthy places, where broken windows, lack of hot water and dirt are commonplace. Besides the negative effects on the physical health of the people detained, the confinement and lack of activities weigh on their mental health too. For many, the harms of immigration detention add to those experienced during the migration journey.

Immigration detention centres are closed institutions, where every aspect of the life of detained people is controlled by others, and where no perspective of release is known to the person in detention.

“The only possible reaction to this environment is violence” said Cocco, “Violence from detention guards. Violence from health care personnel, which often overly prescribes psychotropic drugs. Violence from people in detention against themselves, from self-harm to suicide”.

Deportations are also violent practices. Typically, they would happen without notice, during the night, at 4 am. Police would enter the cell in riot gear and give the person 10 minutes to throw their few possessions into a garbage bag, less than 10 minutes to call a loved one. The person undergoes a quick “fit to fly” visit and are brought to the airplane.

“The point is, is it ok for a doctor to approve that a person be sent to a torturing environment?” said Cocco.  

So far, 40 to 50 doctors have adhered to the campaign, which have collectively avoided that about 100 people be sent to immigration detention. Regional medical associations have not yet responded to the campaign, leaving the ethical burden on individual doctors.

However, the national committee currently reforming the medical code of ethics has proposed to include a clause whereby doctors cannot be requested to declare a person “fit for detention”.

Stopping the “fit for detention” certificates would mean that thousands of people would be spared the suffering of immigration detention. It would save the professional dignity and ethics of doctors. And it would send a strong message to the institutions against the legitimacy of immigration detention.

In June, the network “No More Lager” (Mai più lager – No ai CPR) launched a petition targeted at health care professionals calling for the closure of immigration detention centres across Italy.

But Europe is going in the opposite direction. The EU Migration Pact is thought to lead to the detention of 70-80,000 people every year, especially at the borders, where it is harder to check abuse and respect for safeguards. The Italy-Albania deal (which would see Albania hosting people rescued at sea by Italian authorities for the examination of their asylum claims) poses serious doubts as to how people with vulnerabilities will be treated and makes rights’ monitoring extremely difficult.

In Germany, a 1990 law obliges most public sector workers to report undocumented people to migration authorities. We spoke to Sarah Lincoln from Gesellschaft für Freiheitsrechte (Civil Liberties Association) to know more about this law and what civil society is doing to have it repealed.

Paragraph 87 of the German Residence Act forces any public authority, including social welfare offices, police, and courts, to report undocumented people they come in contact with to immigration enforcement.

The only exception to this rule was carved out in 2011 for schools and kindergartens.

What this obligation means in practice is that undocumented people avoid any contact with public authorities. They do not go to the police to report abuse or seek justice in courts. Many do not even go to the doctor or end up seeking care only in life-threatening situations.

When it comes to health care, the picture is complex: while undocumented people have a right to limited health care on paper, reporting obligations prevent them from accessing it.

According to the Asylum Seekers Benefits Act, undocumented migrants are entitled to limited medical services in the event of acute illnesses or painful conditions as well as during pregnancy and childbirth. Doctors are not obliged to report undocumented patients because they are not public workers (the German health care system is based on private insurances) and are therefore not covered by the Residence Act.

In fact, doctors are not permitted to report undocumented patients because of a legal duty to confidentiality.

But there have been instances where hospital staff reported undocumented patients nonetheless.

And going to the doctor without an insurance, as is the case for undocumented people, often means paying high medical fees and long-term debt. While emergency life-saving care would be provided, the hospital would still claim medical fees in the absence of insurance.

Getting treatment covered by the state requires a person asking for a permission from the social welfare offices, which are obliged to report undocumented people to the police or the migration office.

“The person would probably not even be able to leave the office. Police would come and arrest them and then put them in immigration detention”, said Lincoln.

As a result, undocumented people do not apply for official health care. Some seek treatment through charities and medical students who provide limited health care for free, in many cases severe Illnesses remain untreated.

In one case, a person who came to Germany from the Balkans in the early 90s and later lost his status, was unable to get a heart operation to avoid a (second) heart attack. In another case, a woman from Northern Africa who had been living in Germany for years was diagnosed with late-stage breast cancer by volunteering doctors and found herself with no option to get treatment.

Official data about health outcomes for undocumented people not accessing health care is lacking. But reports from organisations providing free health care and testimonies show that stories like the ones above are commonplace.

Campaigners and advocates have been fighting this law for years. In 2011, they managed to carve out an exception for schools and kindergartens. Since 2021, a coalition led by Doctors of the World and the Gesellschaft für Freiheitsrechte has been campaigning against paragraph 87 of the Residence Act to allow undocumented people to access health care without risking immigration enforcement. The campaign is being supported by over 80 civil society organisations, with the German doctors’ association and German Churches also repeatedly criticising reporting obligations.

The UN Committee on the Elimination of Discrimination against Women noted in its 2023 concluding observations that Germany has no intention of repealing or amending section 87 of the Resident Act and called on Germany to reconsider its position.

In August 2021, Gesellschaft für Freiheitsrechte filed a complaint to the European Commission against paragraph 87 of the Residence Act, denouncing violations of the EU data protection rules (the General Data Protection Regulation) and the right to health care as enshrined in the EU Charter of Fundamental Rights.

While the German government assured that they were considering the complaint (the proposal was in fact taken up by the German government in their coalition programme), they eventually backtracked and on the contrary passed new cuts to social benefits for asylum-seekers, bowing to a political climate ever more hostile to immigration.

Advocates also pursued strategic litigation in German courts, not without challenges. For undocumented complainants, access to courts remains difficult given the court also has an obligation to report to the immigration authorities. And procedures often last too long compared to their urgent medical needs.

Gesellschaft für Freiheitsrechte is currently awaiting to hear about the outcomes of a second complaint filed to the Commission in April 2024.

This press release is based on an article written by PICUM and published on Statewatch’s website.

A draft text proposed by the Belgian Council presidency, just published by Statewatch, furthers the criminalisation of irregular entry in the EU and threatens people helping migrants.

The text, which was presented to other EU member states on 31st May, is a redraft of proposed changes to the law criminalising the facilitation of irregular migration (2002 Facilitation Directive), which has also been used to criminalise migrants and people acting in solidarity with them.

The Belgian redraft will serve as the basis for further discussions within the Council, with Hungary now in the presidency role until the end of this year, in view of adopting a common position on the revised Facilitation Directive.

Marta Gionco, Senior Advocacy Officer at PICUM, said: “This text goes in the direction of more, not less, criminalisation of migrants and those who help them. Sadly, we can expect that the final Council position will follow this trend”

Financial benefit

The Belgian Council presidency’s redraft of the proposed Directive confirms that most member states are against the inclusion of a “financial or material benefit” element in the definition of the criminal offence of facilitation, as already indicated by a previous “non-paper”.

The presidency proposes dividing the offence into two parts. Firstly, for the facilitation of irregular entry into or transit through an EU member state, criminal sanctions would apply even if the facilitator did not receive any financial or material benefit. If there is financial or material benefit, this would be considered as an aggravating circumstance and be sanctioned with maximum sentences of at least three years of imprisonment.

Secondly, for the facilitation of irregular stay, criminal sanctions would apply only if there is financial or material benefit, as is currently the case under the 2002 Directive.

Humanitarian exemption

The presidency proposes two options for exempting humanitarian activity from criminal prosecution, in article 3, both of which are inspired by the Council of Europe Convention against Trafficking in Human Organs.

The first would clarify that the facilitation of irregular entry and transit does not include humanitarian actors or other assistance “aimed at meeting their basic human needs, in order to preserve their human dignity or physical and metal integrity.”

The second would require states to take “the necessary measures to ensure that humanitarian assistance, or any other assistance aimed at meeting their basic human needs, in order to preserve their human dignity or physical and metal integrity” are not criminalised.

As both options focus on “basic human needs”, acts of solidarity considered to go beyond such needs would still risk to be criminalised.

Limiting “basic human needs” and family members

The redraft further limits the scope of humanitarian exemptions in relation to “basic human needs” and “family members”, by defining both concepts in restrictive ways.

On “basic human needs”, the amended recital 7 would clarify that these only include food, personal hygiene and a place to stay, and ensuring that people are not put “in a state of degradation incompatible with human dignity.”

On “family members”, the text introduces a further limitation to recital 7, narrowing down the definition of family members (who would be exempt from criminalisation) only to spouses or unmarried partners in a stable relationship, parents, children and siblings.

Removal of public instigation offence

The Commission’s proposal includes the offence of “publicly instigating” irregular entry, transit, or stay, a move that was sharply criticised by UN Special Rapporteur on Human Rights Defenders, amongst others.

The Special Rapporteur highlighted the serious risk that this provision would be used against civil society organisations and have a chilling effect on the much-needed provision of information and services to migrants.

The presidency redraft deletes this offence. Member states had previously raised concerns about the proposal, with the German delegation commenting that “this affects freedom of expression and possibly also freedom of the press. This should be avoided.”

New joint study by European refugee and migrant rights’ networks ECRE and PICUM finds that EU funds for border management are being used to build harmful infrastructure to control external borders, leading to human rights violations. Crucial information on the assessment of such programmes and how the Commission addressed risks of rights violations was only accessible for this research through freedom of information requests.

The study focuses on the Border Management and Visa Instrument (BMVI), which boasts a 6.2 billion euros budget for 2021 – 2027 to fund equipment, personnel capacity, infrastructures, and technology to be used at the EU’s external borders. Overall, member states have so far received 4 billion euros, an increase of 45% compared to the resources received under the Internal Security Fund – Borders & Visa for 2014 – 2020.

Despite the European Commission ruling out the possibility to use these funds to build fences and walls, we find that the BMVI can already support measures that may disproportionately impact the rights of migrants and refugees. For example, some countries are using BMVI funding for border surveillance technology to either complement or replace physical surveillance.

Key examples:

• Estonia will spend 2 million euros on mobile remote sensing systems to increase border surveillance in areas “where it is not economically feasible to build a permanent infrastructure”.
• Poland aims to “reduce the physical surveillance of the border” by investing in light-detecting systems on watch towers, alarm systems, portable thermal and night vision devices, and motion-activated security cameras at the borders with Russia, Belarus and Ukraine.
• Croatia, Lithuania, Poland and Spain have acquired or are planning to acquire sniffer dogs to help border guards in patrolling borders and chasing and apprehending people who have crossed the border. In Croatia, dogs have already been used to threaten and bite migrants to push them back to the border.
• Estonia, Greece, Hungary, Italy, Poland, Romania and Slovakia will invest in new vehicles equipped with integrated thermal imaging cameras, satellite communication, and x-ray identification systems, with off-road capabilities. In Lithuania, EU resources will allow the purchase of a stationary search detector for persons hidden in vehicles.
• Croatia, Lithuania, Slovenia, and Spain are planning to purchase vehicles for transporting migrants apprehended at the borders to police outposts and facilitate their expulsion to neighbouring countries. This practice constitutes “internal pushbacks” to other member states in informal procedures which have been found illegal by courts in Italy, Slovenia and Austria.
• Hungary’s strategy includes integrating artificial intelligence into vehicles for ground and air reconnaissance operations, potentially involving the employment of drones and other unpiloted vehicles. Greece and Estonia will also use drones and other unpiloted aircraft to expand their aerial surveillance capacity.
• Despite continuously documented challenging conditions of reception centres, Greece is using BMVI resources to run the hotspots on the islands and Cyprus is using BMVI funding to operate the first reception centre in Pournara (just outside Nicosia). Greece is also the country receiving the largest proportion of BMVI resources in absolute terms, with more than 1 billion euros, despite multiple European Court of Human Rights condemnations and continuous reports of persisting degrading conditions, prison-like conditions and restriction of movements in the state-managed centres. Some of these concerns were confirmed by the European Commission’s decision to launch an infringement procedure against the reception conditions in the hotspots in January 2023.
• The BMVI can also finance measures targeting support for people with vulnerabilities and international applicants. This may include procedures for the identification of vulnerable persons and unaccompanied children, information provision to and referral of people in need of international protection and victims of human trafficking, as well as the development of integrated child protection systems. However, the research found that 0.04% of the national programmes (around 1.3 million euros) is devoted to assistance and protection priorities (Croatia and Finland).

Monitoring and evaluation

Member states monitor the implementation of the BMVI programme through dedicated national monitoring committees, which should include experts in fundamental rights like civil society organisations, national human rights institutions, and potentially the EU Fundamental Rights Agency. But our research finds that civil society organisations are often underrepresented in monitoring committees and are not given the means to contribute meaningfully.

The Commission plays a key role in assessing the programmes’ compliance with fundamental rights. However, only thanks to requests for access to documents were we able to see that the Commission had questioned several national programmes during the programming phase, including on lack of access to asylum procedures in Greece, reception and detention conditions in Cyprus and Greece, allegations of pushbacks and discrimination issues in Poland, and deficiencies in judicial independence in Hungary.

What remains unclear is how the Commission came to eventually approve all programmes following murky exchanges with the member states in question. The European Parliament criticised this lack of transparency in the assessment process and initiated a lawsuit against the Commission concerning its decision to disburse over 10 billion euros of EU funds to Hungary, including BMVI funding.

Chiara Catelli, Policy Officer at ECRE and PICUM, said: “The European Commission’s refusal to allow financing of walls and fences is a fig leaf to cover other harmful measures that border funds can already support in member states. Our research finds that BMVI funding is used for an increasingly complex and digitalised system of border surveillance, forming an interconnected web of controls which harms people who come to the EU’s borders.”

“The EU and its member states must ensure that they respect the fundamental rights of people at the borders, including their protection from refoulement, inhuman or degrading treatment and right to life, as well as their often neglected right to access legal support and legal remedy.”

Electoral gains for European far-right parties risk leading to even more human rights violations at the EU’s borders and across Europe, against migrants and racialised people.

The leading European People’s Party look set to continue an approach which has undermined human rights and international law, cost lives, and repeatedly failed in its stated aims. Meanwhile, an increased presence in the European Parliament from far-right groups like the European Conservatives and Reformists and Identity and Democracy will create a powerful lobbying presence for the even more hostile migration policies presented in their manifestos. The main risks include:

A foreign policy that threatens refugee and migrant lives while undermining European security

• The EU looks set to strike more deals with third countries to prevent people from reaching Europe; increasingly also tied to development aid and resource access, thereby distorting European foreign policy aims.
• The EU already struck such deals with Turkey in 2015, with Libya in 2017, with Tunisia in 2023, and with Egypt and Lebanon this very year. 
• This model of pouring millions into third countries, including authoritarian regimes, so they keep people out of Europe, has been proven harmful and lethal time and again – most notably through EU assistance to the Libyan “Coast Guard.” 
• A recent media investigation has revealed how EU funds channelled through these deals are being used by third countries to round up Black migrants across North Africa and dump them in the desert with no aid. The investigation reveals that such operations had been known in Brussels for years.

A border policy that undermines human rights in Europe and paves the way for surveillance and overreach in policing. 

• The EPP promised to triple Frontex staff and increase the agency’s budget and powers (it is already the EU’s largest.) This is despite little evidence of institutional change since the agency was accused of serious rights violations by the EU anti-corruption watchdog OLAF, and found complicit in human rights violations in the Mediterranean by international NGO Human Rights Watch. 
• Former Frontex Director Fabrice Leggeri, who resigned after allegations of misconduct from EU anti-fraud agency OLAF, has been elected as an MEP for French far-right party National Rally.
• This follows the sweeping package of rights infringements contained within the New Pact on Migration and Asylum agreed earlier this year.

Increasing deportations to danger

• Right-wing parties across Europe are looking at ramping up deportations of people seeking asylum to supposedly “safe” third countries for the processing of their asylum claim, and for hosting those who would be granted asylum. This would mean more agreements like the UK-Rwanda deal, which has been much criticised by the UN and national institutions and civil society for violating international law and exposing people to abuse and human rights violations. And it would validate and generalise agreements like the one between Italy and Albania, which would see Italy transfer people rescued at sea to the Balkan country with no guarantees against abuses in the new detention centres.

A full overview of what EU parties’ manifestos say about migration can be found here.