The administrative deprivation of liberty of third-country nationals for immigration purposes has progressively become a common practice within the European legal framework. This sui generis detention is characterised by the fact that, in any case, it is not implemented within criminal proceedings, but irregular migrants and applicants for international protection are deprived of their personal liberty because of their status of ‘non-citizens’ when the competent authorities are carrying out the relevant immigration procedures. The European Union has adopted several pieces of legislation, in order to regulate the matter – whilst ad hoc dispositions have been created for the detention of irregular migrants (the so-called ‘Return Directive’) with weak substantial and procedural guarantees in favour of the detainee, on the other hand, a specific corpus of rules have been implemented vis-à-vis applicants for international protection (the so-called ‘Procedures’ and ‘Reception’ Directives and the Dublin III Regulation), which raise concerns, with particular regard to the effective respect of the right to asylum, as it is enshrined (also) by international law. Moreover, the settled case-law of the CJEU had played a ‘nuanced’ role in parte qua, sometimes extending and at other times restricting the guarantees to be accorded to the third-country national whose liberty was deprived for immigration purposes. To sum up, a nationality-based approach in regulating immigration detention measures has been de facto adopted by the EU (whose Charter of Fundamental Rights protects the right to liberty as per its Article 6), providing for different guarantees because of the status of the migrant concerned. Conversely, a ‘universalistic’ approach has seemed to be adopted by the Council of Europe, as Article 5 ECHR enshrined the right to liberty and security to ‘everyone’, without regard to any nationality-assessment. Indeed, administrative detention is expressis verbis allowed under Article 5(1)(f) ECHR, and it is noteworthy that the ECtHR had developed a sui generis test in order to rule on the lawfulness of this legal tool – the different assumptions that the Strasbourg Court has followed in parte qua (e.g. excluding the relevance of the principle of necessity in concreto) reveals that immigration detention is considered to be a peculiar form of deprivation of liberty, even within the 'universalistic’ ECHR legal framework. Moreover, several violations of other ECHR regulations may occur vis-à-vis migrants in detention, such as the right to be informed (Article 5(2)), the right to habeas corpus (Article 5(4)), the right to seek compensation for unlawful detention (Article 5(5)) and, finally, the prohibition of inhuman or degrading treatments (Article 3). It is apparent that relevant interconnections, albeit not only in this matter, do exist between EU and ECHR legal frameworks. Whilst on immigration detention measures a comprehensive ‘dialogue’ has probably begun in recent years between Luxembourg and Strasbourg, on the other hand it is noteworthy that the ‘Bosphorus doctrine’ (unilaterally developed by the ECtHR) might help to better define the boundaries between the two legal frameworks on the matter, even though it has never been applied so far.
Immigration detention in Europe.
Bernardini, Lorenzo
2022
Abstract
The administrative deprivation of liberty of third-country nationals for immigration purposes has progressively become a common practice within the European legal framework. This sui generis detention is characterised by the fact that, in any case, it is not implemented within criminal proceedings, but irregular migrants and applicants for international protection are deprived of their personal liberty because of their status of ‘non-citizens’ when the competent authorities are carrying out the relevant immigration procedures. The European Union has adopted several pieces of legislation, in order to regulate the matter – whilst ad hoc dispositions have been created for the detention of irregular migrants (the so-called ‘Return Directive’) with weak substantial and procedural guarantees in favour of the detainee, on the other hand, a specific corpus of rules have been implemented vis-à-vis applicants for international protection (the so-called ‘Procedures’ and ‘Reception’ Directives and the Dublin III Regulation), which raise concerns, with particular regard to the effective respect of the right to asylum, as it is enshrined (also) by international law. Moreover, the settled case-law of the CJEU had played a ‘nuanced’ role in parte qua, sometimes extending and at other times restricting the guarantees to be accorded to the third-country national whose liberty was deprived for immigration purposes. To sum up, a nationality-based approach in regulating immigration detention measures has been de facto adopted by the EU (whose Charter of Fundamental Rights protects the right to liberty as per its Article 6), providing for different guarantees because of the status of the migrant concerned. Conversely, a ‘universalistic’ approach has seemed to be adopted by the Council of Europe, as Article 5 ECHR enshrined the right to liberty and security to ‘everyone’, without regard to any nationality-assessment. Indeed, administrative detention is expressis verbis allowed under Article 5(1)(f) ECHR, and it is noteworthy that the ECtHR had developed a sui generis test in order to rule on the lawfulness of this legal tool – the different assumptions that the Strasbourg Court has followed in parte qua (e.g. excluding the relevance of the principle of necessity in concreto) reveals that immigration detention is considered to be a peculiar form of deprivation of liberty, even within the 'universalistic’ ECHR legal framework. Moreover, several violations of other ECHR regulations may occur vis-à-vis migrants in detention, such as the right to be informed (Article 5(2)), the right to habeas corpus (Article 5(4)), the right to seek compensation for unlawful detention (Article 5(5)) and, finally, the prohibition of inhuman or degrading treatments (Article 3). It is apparent that relevant interconnections, albeit not only in this matter, do exist between EU and ECHR legal frameworks. Whilst on immigration detention measures a comprehensive ‘dialogue’ has probably begun in recent years between Luxembourg and Strasbourg, on the other hand it is noteworthy that the ‘Bosphorus doctrine’ (unilaterally developed by the ECtHR) might help to better define the boundaries between the two legal frameworks on the matter, even though it has never been applied so far.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
