Immigration detention and de facto detention: what the law says

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.