The Long Route Towards a Widespread European Culture of Alternatives to Immigration Detention

in European Journal of Migration and Law
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The aim of this article is to provide an analysis of the application by some European Union countries of alternative measures to detention of migrants. Sections 2 and 3 indicate, in line with European normatives and with detention being a measure of last resort, that Member States having ascertained that there are grounds for the detention of migrants, should evaluate whether the aims pursued can be achieved through a less coercive measure which respects the fundamental rights of individuals. Unfortunately, as examined in Section 4, analysis of most European countries’ law reveals an unsatisfactory application of alternative measures to detention. As in, for example, Italy’s case, whose legislation and practice on alternatives to detention is examined in Section 5. In Section 6, the final section, the necessity for a change of culture among the competent authorities is highlighted. For this purpose, the recast Receptions Conditions Directive, which obliges Member States to provide alternative measures to detention of migrants, allowing States to introduce types of measures which are not listed in the Directive, seems to represent a good opportunity.

The Long Route Towards a Widespread European Culture of Alternatives to Immigration Detention

in European Journal of Migration and Law

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References

2

See among others ECtHR 1 September 2015Khlaifia and others v Italy Application no. 16483/12 (although it is not final); 31 July 2014 Tatishvili v Greece Application no. 26452/11; 31 July 2014 F.H. v Greece Application no. 78456/11; 27 March 2013 Aden Ahmed v Malta Application no. 55352/12; 19 January 2012 Popov v France Application no. 39474/07; 12 October 2006 Mubilanzila Mayeka and Kaniki Mitunga v Belgium Application no. 13178/03; 19 January 2010 Muskhadzhiyeva and others v Belgium Application no. 41442/07.

5

P. De Bruycker et al. (eds) (2015) Alternatives to Immigration and Asylum Detention in the EU. Time for implementation Brussels: Odysseus Network p. 62 on the law and practice in alternatives to detention in six eu Member States: Austria Belgium Lithuania Slovenia Sweden and the United Kingdom available online at http://odysseus-network.eu. The Report is part of the Project ‘Made Real’ (Making Alternatives to detention in Europe a reality by Exchanges Advocacy and Learning) co-funded by the European Union; the leading organization is the Odysseus Network.

13

See De Bruycker et al. (2015) p. 45.

15

See De Bruycker et al. (2015) p. 55.

18

Committee of Ministers 16 April 2003.

23

Parliamentary Assembly Resolution 2020 (2014) The alternatives to immigration detention of children 3 October 2014. See in particular para. 9.11 where Member States are called on to ‘share best practices on the alternatives to the detention of migrant children in all Member States’; and para. 9.12. to ‘encourage collaboration between governments of Member States the Council of Europe United Nations agencies intergovernmental organisations and civil society organisations to end child immigration detention and implement non-custodial community-based alternatives to detention for children and their families’.

25

ECtHR 5 July 2011Application no. 8687/08.

26

ECtHR 19 January 2012Application nos 39472/07 and 39474/07.

27

ECtHR Grand Chamber 4 November 2014Application no. 29217/12 paras 121–122. See S. Peers Tarakhel v. Switzerland: another nail in the coffin of the Dublin system? available online at http://www.eulawanalysis 5 November 2014.

29

Amnesty International (2009) Irregular migrants and Asylum-Seekers: Alternatives to Immigration Detention London: ai.

31

See European Migration Network (2014) The use of detention and alternatives to detention in the context of immigration policies. Synthesis Report of the emn Focussed Study Brussels: emn available online at http://emn.ie/cat_publication_detail.jsp?clog=1&itemID=2745&t=6. This Report was prepared on the basis of contributions from the following States: Austria Belgium Bulgaria Croatia Cyprus Czech Republic Estonia Finland France Germany Greece Hungary Ireland Latvia Lithuania Luxembourg Malta Netherlands Poland Portugal Slovak Republic Slovenia Spain Sweden United Kingdom and Norway. The second Report is edited by De Bruycker et al. (2015) Alternatives to Immigration and Asylum Detention in the eu. Time for implementation Brussels: Odysseus Network.

33

C. Riedl and C. Steinwendtner (2015) Completed Practices Questionnaire for the Project Made RealAustria Brussels: Odysseus Network p. 10 available online at http://odysseus-network.eu/made-real-national-reports.

34

See S. Campbell (2015) Completed Practice Questionnaire for the Project Made Realuk Brussels: Odysseus Network p. 29 available online at http://odysseus-network.eu/made-real-national-reports.

43

Campbell (2015) p. 32.

44

Campbell (2015) p. 29 f.

48

See National Report (2014) The use of Detention and Alternatives to Detention in the context of Immigration Policies in Belgium Brussels: emn p. 30 ff.

53

See De Bruycker et al. (2015) p. 87 which reports the case of Sweden.

55

See De Bruycker et al. (2015) p. 132 ff.

56

See National Contact Point Austria (2014) The Use of Detention and Alternatives to Detention in the context of Immigration Policies in Austria Study of the National Contact Point Austria in the European Migration Network Brussels: emn p. 35.

57

See C. Riedl and C. Steinwendtner (2015) Completed practice questionnaire for the project Made RealAustria Brussels: emn p. 19.

58

In this sense De Bruycker et al. (2015) p. 99.

62

A. Di Pascale and P.L. Di Bari (2014) Completed Questionnaire for the project Contention National Report—Italy Brussels p. 32 available online at http://www.contention.eu.

64

See Di Pascale and Di Bari (2014) p. 32.

67

See G. Campesi (2015) ‘I centri di identificazione ed espulsione come strumento di governo della pericolosità sociale’ in: V. Militello and A. Spena (eds) Il traffico di migranti. Diritti tutele criminalizzazione Torino: Giappichelli p. 239 ff.

75

See L. Masera (2014) Ridotto da 18 a 3 mesi il periodo massimo di trattenimento in un cie: la libertà dei migranti irregolari non è più una bagattella? avaiolable online at http://www.penalecontemporaneo.it 10 November.

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