Boundaries of Liberty: Asylum and de facto detention in Europe
The detention of persons seeking protection is a frequent component of asylum systems, despite well-established evidence of its damaging effects on individuals and limited efficiency in regulating the movement of people. More critically, however, it remains a highly opaque phenomenon. Places of confinement are underpinned by varying and creative terminology from one country to another, while data on the scale of detention remain scarce, complex and in constant need of qualification and explanation.
Practices which allow states to circumvent their international and European Union (EU) law duties stem from ambiguities in legal frameworks, often driven by deliberate policy choices. States may have different reasons for maintaining the obfuscation between reception and detention. They may seek to circumvent the prescriptive standards stemming from refugee and human rights law when depriving those seeking asylum of their liberty to expose them to particularly precarious situations, or for reasons of simple administrative convenience. States may also see an interest in downplaying the scale of coercive measures in their asylum systems through inaccuracy or misrepresentation in statistics.
Drawing on a comparative analysis of national legal frameworks and practice in the 23 European countries covered by AIDA, ECRE makes the following recommendations:
- European countries should eliminate any fictitious designation of transit zones or other facilities at the border as not being part of their national territory according to their national law, in line with ECtHR jurisprudence and the territorial scope of the recast Asylum Procedures and Reception Conditions Directives.
- Where they prevent asylum seekers from leaving the transit zones or other border facilities to access other parts of their territory, European countries should legally qualify those measures as deprivation of liberty.
- The Council and European Parliament should clarify in the reform of the recast Reception Conditions Directive that stay in a transit zone or a border facility amounts to deprivation of liberty where the applicant is not allowed to freely enter and exit the facility into the territory.
- Where European countries resort to restrictions on freedom of movement or deprivation of liberty, in accordance with domestic law and human rights law requirements, they should inter alia: (a) conduct an individualised assessment of each case to establish necessity and proportionality; (b) consider the application of alternatives to detention; (c) communicate a duly motivated detention decision to the individual concerned; (d) specify the modalities of effective remedy before a court; (e) eliminate restrictions imposed upon access of legal representatives, UNHCR and specialised civil society organisations, including by guaranteeing access to phones and other communication methods and by respecting confidentiality of contacts.