Guilty of Travelling: When Immigration Detention is Worse than Prison

Guest post by Corallina Lopez Curzi. Corallina holds a LLM (Università Roma 3) and a MA Human Rights (University College London). She is a Program Coordinator at the Italian Coalition for Civil Liberties and Rights (CILD) and Assistant Researcher at Antigone. She is a member of Antigone’s national prisons observatory and Fair Trial’s Legal Experts Advisory Panel. She writes about human rights - regularly on Open Migration and Rights Info, and occasionally on other news outlets. Corallina is on Twitter @corallinaLC.

These are bad times for migrants in Italy. The government seems to have two fundamental priorities: keeping migrants far from Italian coasts, and sending home as many ‘illegals’ as possible.

These priorities indicate a stronger push towards  the externalisation of borders. Thus we see, Libya becoming an unlikely ally to limit crossings on the deadly Central Mediterranean route - while humanitarian NGOs carrying on search and rescue (SAR) missions at sea are being subjected to an unprecedented smear campaign.

Secondly, there has been a toughening of immigration law. Italy has recently approved a new law designed to accelerate forced returns - which may lead to grave human rights violations, as in the recent Sudanese case. It has also expanded its immigration detention system. New and rebranded detention centres - no longer called Centres for Identification and Expulsion (CIE) but rather Centres for Residence and Repatriation (CPR) - will be opened throughout Italy to expand the capacity of the immigration system: from the current 4 centres to 20, from the current 400 places to 1600 (for more on this see the post by Francesca Esposito here).

Immigration detention: taking a step backwards instead of going forward

These developments signal the reversal of positive reforms adopted in 2014, when Italy refrained from using immigration detention - following revelations about inhumane conditions of detention, a series of protests in detention centres, and a national movement to close immigration detention centres.

Over the past years, a number of oversight bodies - both governmental and not -, including the Senate human rights commission, have highlighted the failings of immigration detention - defined as harmful, expensive and largely ineffective in effectuating returns. At the same time,  international research has proved that there are (better) alternatives to immigration detention - such as non-custodial, community-based programs - which are more humane as well as more effective and far cheaper. Notwithstanding the historic failure of the (dangerous) immigration detention model and the existence of viable alternatives, Italy is today moving towards the building of a ‘Fortress Italia’ through a wall of laws - taking a step back instead of forwards.

CIEs are worse than prisons, says Ombudsman

With the extension of the immigration detention system looming - the first new center will be opened in the southern city of Bari by the end of the summer - it is more important than ever to assess the state of detention facilities and put in place strict monitoring mechanisms to ensure their compliance with human rights standards.

In this perspective, the (long-awaited) institution of a Prisons Ombudsman - also functioning as a National Preventive Mechanism (NPM) was welcome. The competencies of this new body include the monitoring of all facilities where migrants are deprived of their liberty (i.e., immigration detention centres as well as forced return flights and hotspots). The Ombudsman - which had been formally created already back in 2013 but only started properly functioning at the beginning of 2016 - has been carrying out visits in detention facilities and controls on forced return flights for more than a year now, and has recently released its first annual report as well as a report solely dedicated to immigration detention centres in Brindisi, Caltanissetta, Turin and Rome. The findings highlight inadequate living conditions in all centres and poorly maintained facilities: dark, dirty, and degrading are all terms that come up too often.

Other issues include insufficient provision of information to detained migrants - who are often found to be unaware of their legal status and rights - and inadequate internal monitoring mechanisms. Most centres, for instance do not have a critical events registry (that is, a mechanism of monitoring and documenting critical events such as self-harm and suicides as well as violent episodes). All feel a lot like prisons, if not worse. Yet, while migrants are locked up behind high walls and bars, they do not benefit from the same rights and safeguards that are ensured to prisoners. These places - where people are deprived of their liberty due to administrative decisions belong to a ‘grey area’ of law and rights, and if they are to continue to exist - or, worse, to expand - much is to be done to improve their compliance with human rights standards.

The hotspot limbo

Detention centres are not the only problem in Italy.  Rather, as the Ombudsman’s report makes clear, the situation is even more complex in hotspots. In these sites, which are arguably a sort of legal no man’s land - people are de facto deprived of their liberty without any proper judicial control. Here, where the only applicable law are the Standard Operating Procedures (SOP) issued by the Ministry of Interior, people are supposed to be hosted only for very short periods of time - between 24 and 48 hours - for identification (and possibly expulsion) procedures. In practice, though, migrants ofen remain in hotspots for days or even weeks: the average length of stay is as much as 15 days in Lampedusa and 10 in Taranto.

The implementation of the so-called hotspot approach poses many problems in terms of international law and human rights compliance. The de facto detention of newly arrived migrants is certainly one of the aspects that deserve the most attention, and one that certainly cannot be left in an unregulated ‘legal limbo’. The Ombudsman report rightly asks for a proper regulation of the hotspot regime: people - including many children and (sometimes pregnant) women, who once identified often have to wait due to lack of adequate reception structures - are indeed already being held in these places, and we cannot just pretend this is not happening.

Where to go from here

Italy’s new law on immigration and asylum is likely to deteriorate further an already precarious situation. The upcoming expansion of the system poses complex challenges which need to be addressed: if Italy is going to continue detaining thousands of migrants this should at least happen under a clear-cut legal framework and with the supervision of a strict monitoring mechanism. The European immigration detention rules being discussed by the Council of Europe could be a good step in that direction, but are too strongly modelled on prisons’ regimes to offer a satisfactory framework.

One thing is for sure: we need to keep paying attention to the issue. Thus, it is crucial that the valuable work and important recommendations of the Ombudsman are followed and concrete effort is put in the shaping of stringent rules and standards for each and every situation in which migrants are deprived of their liberty.

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How to cite this blog post (Harvard style)

Lopez Curzi, C. (2017) Guilty of Travelling: When Immigration Detention is Worse than Prison. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/07/guilty-travelling (Accessed [date])