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.

This blog was written by former PICUM’s Advocacy Trainee Alyona Samar.

Since the outset of the war in Ukraine, nearly 6 million people have fled violence perpetrated by the Russian army. The majority have crossed borders to the EU. While many have been welcomed in neighbouring countries, a number of reports have emerged of differential treatment towards non-Ukrainian nationals escaping the war.

Investigations conducted by Lighthouse Reports with The Independent, Der Spiegel, Radio France, and Médiapart, revealed that African nationals were detained in Poland and Estonia after fleeing Ukraine. While the total number is unknown, Polish police confirmed on March 15 that at least 52 third-country nationals were detained after crossing the border from Ukraine to Poland.

People apprehended at the border were denied legal aid and interpreters, and were left with no information on the circumstances of their detention. For instance, the Polish Border Guard detained a Nigerian student who was forced to sign a document written in Polish, without any appropriate translation, under the threat of five months in jail should he refuse to sign. When the student went to court, he wasn’t provided with an interpreter, and eventually found himself in an immigration detention center.

Many other students from Cameroon, Ghana, the Ivory Coast, and other African nations also ended up in detention centres. None of them had access to information, they all had their phones confiscated and very limited access to the Internet.

A student from Nigeria experienced similar treatment in Estonia. The officers claimed that he did not have the right to enter the country and threatened him with a five-year entry ban to the whole Schengen territory.

Lighthouse Reports estimated that up to 45 people were still held in the Zhuravychi immigration detention centre in Ukraine as of March 21. Many of them had been intercepted by the Polish border guards when they were trying to enter Poland, and handed to the Ukrainian authorities. After 24 February, they were all moved to a part of the centre that has no windows nor functioning power sockets: with no access to information, they were left to listen to the shelling and explosions without knowing how near they were. Mid-April reports suggest that some of the people who were released form the detention center in Zhuravychi were later re-detained in Poland.

Such discriminatory practices expose the double standards and systemic racism that is inherent within the EU and national migration policies.

These practices also stand in direct contradiction to Recital 13 of the Council Implementing Decision (EU) 2022/382 on temporary protection, which states that third country nationals working or studying in Ukraine “should in any event be admitted into the Union on humanitarian grounds without requiring, in particular, possession of a valid visa or sufficient means of subsistence or valid travel documents, to ensure safe passage with a view to returning to their country or region of origin.”

Third-country nationals escaping the horrors of war should be given care and protection instead of being discriminated, threatened, and detained. Immigration detention is always a harmful and disproportionate measure which leads to severe violations of fundamental rights. Detention has extremely harmful consequences on mental health and can exacerbate people’s vulnerability. Detaining people fleeing from war and violence can additionally trigger past trauma and constitute ill-treatment.

Rather than continuing the harmful practice of detaining people, and applying double standards to people fleeing from persecution, the European Union should ensure equal access to safety for all people regardless of their place of origin, race, ethnicity, or immigration status.