The Jesuit Refugee Service Belgium recently released a new comprehensive report on the state of immigration detention in Belgium in 2021. This blog is based on an interview with Nicolas Wéry, Advocacy Officer at JRS Belgium, and author of the report.

Today, Belgium counts six immigration detention centres (centres fermés) that hold on average 6,000 to 8,000 people every year. The immigration detention system also includes five “return houses” (maisons de retour) for families with children. In both cases, the detention is intended to lead to the deportation of people in an irregular situation, and people stopped at the border, to a third country. But data show a different picture.

A punishment tool

Rather than being a tool to deport people, many in the civil society space see immigration detention as a punishment against people who are unable to get a residence permit . In this regard, JRS Belgium registers a certain proximity between immigration and criminal detention: a significant proportion of people who are held in immigration detention centres served a prison sentence, and were transferred to a closed centre at the end of it, de facto prolonging their detention. The punishment aspect becomes all the more visible when one considers that the immigration office can in principle return these people six months before their prison sentence ends: it is therefore doubtful that if the return did not happen within that period, it will happen while in immigration detention, in the absence of new elements.

“Effectiveness”

Despite the authorities touting detention as an effective tool to remove people from Belgium, data from the Immigration Office (Office des Etrangers) shows that it is not, as only just over a half of people in detention were actually deported in 2021. On the contrary, data shows that the longer people are held in detention, the lower the chances they will be deported.

In this framework, it is interesting to note who gets deported and for what reasons. Most of the returns concern Albanian nationals, who are more easily deported because Albania did not require negative COVID-19 tests to admit people to its territory, and the country easily accepts such returns arguably as a tool to ease its accession to the EU. Undocumented Albanians also appear to have less recourse to appeal procedures to counter detention and deportation. The data suggests that authorities target Albanian nationals precisely to ramp up deportation figures and strengthen their claim that immigration detention is a useful tool in migration management.

COVID-19

Despite leading to a reduced capacity of immigration detention centres in 2021, the COVID-19 pandemic made detention centres less accessible. JRS Belgium’s weekly visits were heavily disrupted throughout 2020, when they could not visit for four months, before regaining partial visiting access (one visitor instead of two). Throughout 2021, JRS Belgium did not have access to common spaces, which made it difficult to meet with new people in detention. Crucially, families and friends of people in detention also saw their visits restricted.Photo: (c) Kristien Vliegen, Immigration detention centre in Bruges, Belgium.

COVID-19 also meant that legal principles that underlie immigration detention were stretched to their limits.

This was first visible for the legality of detention itself. In principle, a person can be held in immigration detention if there is a realistic possibility that they can be returned to a third country. If not, the person should be released. This was not the case, for instance, for many Moroccan nationals, who were kept in detention despite their return to Morocco was practically impossible since the country had closed its borders.

Another challenge concerned the length of the detention. As many countries required negative tests to enter their territory, some detainees refused to get tested for personal convictions or for fears over leaving their life behind. In such cases, the authorities considered the day of the refusal to get tested as the first day of detention, effectively resetting the counter to zero. With this practice, a person could be detained for multiple periods of time, up to 18 months, which is the maximum length set by the EU Returns Directive.

More immigration detention

The current government coalition reached a political agreement in April 2022 to build three new immigration detention centres, leading to some 500 more places. Long a part of past governments’ agendas, the project is expected to be realised in the next years.

JRS Belgium understands that this expansion of immigration detention is motivated by the authorities’ belief that more centres will lead to more removals. This discourse is present in many other EU countries, and is being promoted at the EU level by the 2020 EU Migration Pact’s focus on detention as a migration management tool.Photo: (c) Kristien Vliegen, Immigration detention centre in Merksplas, Belgium.

JRS Belgium has been monitoring immigration detention in the country for years, including through teams who visit the detention centres and talk to people in detention every week. Their latest report is based on material gathered during such visits, and includes official data from the  Immigration Office (Office des Etrangers). A monitoring report of immigration detention in Belgium will be published every year.

JRS Belgium also runs the Plan Together pilot project on alternatives to detention, through which they assist undocumented people through their migration procedures. 

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.

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.

The text below is an abridged version of the full briefing that can be found here.

What is immigration detention?

Immigration detention is understood as the deprivation of liberty for reasons related to a person’s migration status.

In the EU, states typically apply immigration detention in four contexts:

• to prevent entry to their territory,
• to carry out return/deportation procedures,
• during asylum procedures, and
• in the context of Dublin transfer procedures

Whatever the circumstances, immigration detention interferes with one of the most fundamental human rights – the right to personal liberty. This right is protected under Art. 5 of the European Convention on Human Rights (ECHR), Art. 6 of the EU Charter of Fundamental Rights, and Art. 9 of the International Covenant on Civil and Political Rights (ICCPR).

What is de facto detention?

When states decide to place a person in immigration detention, they need to comply with a number of requirements and safeguards. To avoid these, states sometimes refuse to acknowledge that a person is detained. Rather, they argue that the measure is merely a restriction on the person’s freedom of movement. They may even argue that the person is not being detained because they could leave the country instead, even though this often means moving to a place where their life and security would be at risk.

De facto detention can be understood as a measure which in practice amounts to deprivation of liberty but which states do not formally qualify as such. De facto detention is not based on a detention order nor is it usually subject to a judicial review. It also tends to be carried out in places which are not recognized as places of deprivation of liberty, for instance at border premises, reception or registration centres, and even boats.

Irrespective of terminology used by states, any placement of a person in custodial settings which that person is not permitted to leave at their will is considered as deprivation of liberty under the Optional Protocol to the Convention Against Torture. The key element of this definition, which is the impossibility to leave the facility, was also included in the definition of immigration detention by the UNHCR and the UN Migrant Workers Committee. The European Court of Human Rights (ECtHR) and Court of Justice of the European Union (CJEU) also place an emphasis on whether the persons are allowed to leave the premises and on the level of restrictions on movement within the facility.

In one case, the ECtHR found that keeping persons for nine days at a centre which was formally denominated by the Italian government as an “identification and registration centre” amounted to detention because their freedom of movement was limited inside the facility and they were not allowed to leave it.In our briefing, we further explore the following questions:

• When are transit zones “detention”?
• When is it “detention” and when is it “restriction of movement”?
• When is immigration detention arbitrary?
• Which procedural safeguards apply?
• Can children be detained for immigration purposes?
• What are alternatives to detention and when can they be applied?
• Is immigration detention part of criminal law?
• Does EU law allow for immigration detention?

We also discuss how the proposed EU Pact on Asylum and Migration considers detention for immigration purposes. Our in-focus on detention in the Pact can be downloaded here.