The EU Hotspot Approach: Blurred Lines between Restriction on and Deprivation of Liberty (Part II)

Guest post by Izabella Majcher. Izabella is a researcher in international human rights and refugee law, with expertise in EU immigration and asylum policy. She is a researcher at the Global Detention Project and a volunteer visitor to immigration detainees with the Ligue Suisse des Droits de l’Homme. She holds a PhD in international law from the Graduate Institute of International and Development Studies (IHEID) in Geneva. This is the second post of Border Criminologies' themed series 'Hotspots and Plethora of Freedom-Restricting Measures', organised by Izabella. 

Confinement in hotspots

Assessed against the international human rights framework governing measures of confinement, do hotspots raise an issue under the right to liberty of person or freedom of movement?

Italy. Between October 2015 and February 2016, Italy set up four hotspots, notably in Pozzallo, Taranto, Trapani, and on the island of Lampedusa, with a total capacity of 1,600. The operation and location of hotspots change frequently. At the end of 2017, a new facility was established in Messina, while mid-March 2018, the Lampedusa and Taranto hotspots were slated for the temporary closure, following a wave of criticism at their operation and conditions (see here and here). The very operation of the hotspots is not properly regulated under Italian legislation. Until recently, the facilities were addressed merely in the non-binding Standard Operating Procedures (SOPs). Only in February 2017, the Italian Parliament approved a relevant amendment to the Consolidated Immigration Act. The Minniti-Orlando Decree-Law mentions hotspots but solely with reference to another Decree-Law from 1995 (No. 451/1995). It still fails to establish a clear framework for the operation of these centres.

From the outset, the main objective of the Italian hotspots has been to ensure proper identification and fingerprinting of newly arrived persons. The focus on fingerprinting has been predominant because Italy was previously criticized by the EU for not ensuring that asylum seekers arriving to its shores were fingerprinted. Asylum seekers are not allowed to leave hotspots until they are identified and fingerprinted. This usually takes up to two weeks but may last longer, depending on the number of arrivals. People who are reluctant to give their fingerprints can be held longer, frequently until they accept to be fingerprinted. Prohibition to leave the premises over such a period amounts to de facto detention and should be analysed under art.5 of the ECHR. While detention in these circumstances may fall within the ambit of lawful detention at the entry points under art.5(1)(f) of the ECHR, in order to be lawful, detention should be clearly regulated under domestic law.

There is currently no legal basis for detaining foreigners in hotspots during identification and fingerprinting. The SOPs provide that a person can leave the premises after being identified but there is no formal decision ordering the person’s stay in the centre. There can thus be no appeal and no judicial review of this measure. Under Italian legislation, it is permissible to detain a person for identification purposes for up to 48 hours without judicial validation. However, the practice in the hotspots cannot be justified on this basis because people are detained beyond that time-span. The lack of proper legal basis for deprivation of liberty during the fingerprinting procedures renders this measure unlawful under art.5 of the ECHR. Indeed, in Khlaifia and others v. Italy, the Grand Chamber of the ECtHR found that this practice, as carried out in the first assistance centre in Lampedusa before it was transformed into the current hotspot, violated art.5 of the ECHR because it was not based on any domestic provision. Were the legislative gap to be filled, this practice may still not be lawful under international human rights law. The systematic nature of this measure, the lack of consideration of non-custodial alternative measures, and the element of coercion toward people opposing the fingerprinting procedure is inconsistent with the requirements of necessity and proportionality, as established by the HRC in its case-law on immigration detention (for instance A. v. Australia or Baban v. Australia).

In line with the SOPs, after fingerprinting and identification procedures, migrants and asylum seekers should be transferred to other centres, notably reception centres (asylum seekers, including those admitted for relocation) or pre-removal detention centres (people whose asylum applications were turned down). However, in practice, transfer to these centres is frequently delayed and people continue to stay in the hotspots for a few weeks. During this period, generally, non-citizens can leave the premises during the day but are required to return at night. These measures should thus be considered in the framework of the right to freedom of movement. According to the GC No.27 of the HRC, to be lawful, the restriction on freedom of movement should be provided by law and be clear, precise, and foreseeable. The SOPs fail to regulate this stage of the proceedings, which explains considerable variations in application of the restriction on movement. For instance, in the Taranto hotspot, people received passes allowing them to exit the centre during the day, while in Lampedusa, there was officially no possibility to go out but it was tacitly accepted by the authorities. Without clear legal basis, restriction to hotspots pending transfer to other centres cannot be justified as a lawful restriction on freedom of movement.

Finally, administrative delays and the emphasis on return, combined with the lack of transparency around the operation of the hotspots, may lead to the informal practice of using these facilities for pre-removal detention. Under the Minniti-Orlando Decree-Law (art.17(3)), repeated refusal to be fingerprinted may be construed as a risk of absconding and thus as a ground for pre-removal detention under the Consolidated Immigration Act. The latter provides (art.14(1)) that pre-removal detention is to be carried out in pre-removal detention centres. This implies that the person should be transferred from a hotspot to a formal detention centre. However, in practice, when the transfer is delayed, the person might be de facto held in pre-removal detention in a hotspot. In addition, reportedly, returns are sometimes enforced directly from the hotspots. The implementation of pre-removal detention in hotspots would conflict with the Consolidated Immigration Act and consequently be unlawful under art.5 of the ECHR.

Greece. Greece operates five hotspots (formally called Reception and Identification Centres (RICs)) on the Aegean islands. Comprising a total capacity of 5,450, the centres are located on Lesvos (Moria), Chios (Vial), Samos (Vathy), Leros (Lepida), and Kos and, like their Italian counterparts, were established between October 2015 and March 2016.

At the outset, the RICs functioned as open facilities to register, screen, and assist arriving migrants and asylum seekers before their swift transfer to the Greek mainland. With the March 2016 EU-Turkey deal their role changed. The RICs became the cornerstone of the enforcement of the agreement with Ankara, under which all people arriving after 20 March 2016 are liable to be returned to Turkey. In practice, all newly arrived asylum seekers are subject to “restriction of liberty” for up to 25 days, regulated under art.14 of the April 2016 Law 4375/2016, adopted to implement the EU-Turkey deal. During this period, people are registered and identified and, crucially, cannot leave the premises. Under international law, deprivation of liberty is not defined according to domestic classification but is based on the factual situation of the individual concerned. Pursuant to Amuur v. France before the ECtHR, holding asylum seekers in an airport international zone for 20 days under police surveillance may amount to detention, despite the country’s arguments to the contrary. Therefore, although labelled “restriction of liberty” in the RICs, prohibition to leave the premises should be considered de facto detention. Indeed, in the recent ruling in J.R. and others v. Greece, the ECtHR found that “restriction of liberty” of a few days to which the applicants were subject in the Chios hotspot, before it was transformed into a semi-open centre, constituted detention.

Since Greek law fails to adequately classify this measure as detention, the domestic legal basis cannot be considered sufficiently clear and foreseeable to ensure legal certainty, as stipulated by the requirement of lawfulness. In addition, applied to all asylum seekers, detention has a systematic character, in breach of the principles of necessity and proportionality. Another consequence of not labelling detention as such is the impeded access to procedural detention-related safeguards. However, the Law 4375 (art.14(4)) does set out a few safeguards for people concerned, including the right to receive a reasoned decision in writing and to appeal the measure. Yet, reportedly, these rights are frequently not ensured in practice.

In response to pressure by civil society organisations and practical difficulties, such as overcrowding in hotspots due to administrative delays, the “restriction of liberty” has been eased in practice. Currently, in most cases, the procedure tends to be completed within a few days. However, on some islands it still takes more time. In any case, as long as article 14 of the Law 4375 is in force, the practice of systematic detention upon arrival for up to 25 days may well return. 

Like the Italian hotspots, the RICs appear to sometimes be used for pre-removal detention. Upon arrival, all asylum seekers receive a decision of return to Turkey, which contains a detention order based on the risk of absconding. Thus, being released from the hotspots after the first registration procedure, people can be detained on this basis at a later stage. Under the Law 3907/2011 (art.31), pre-removal detention is enforced in pre-removal detention centres. Indeed, such detention is generally implemented in police stations on the islands or newly opened pre-removal detention centres in Moria or Kos. Yet, reportedly there have been cases of pre-removal detainees placed in the Lesvos RIC due to the lack of space for families in the pre-removal detention centre. At odds with the Law 3907, this practice is unlawful under art.5 of the ECHR.

Geographical restriction

A unique feature of the implementation of the hotspot approach in Greece is geographical restriction on movement. After release from de facto detention in the RICs, asylum seekers are no longer transferred to the Greek mainland. Rather, they are obliged to remain on the island where they were registered. They undergo fast-track border procedure which assesses which whether Turkey is a “safe country” and, if so, they are to be readmitted to Turkey. Due to administrative delays, people actually remain on the islands for months.

Does geographical restriction comply with the right to freedom of movement under art.12 of the ICCPR (Greece is not party to the Prot. 4 to the ECHR)? To be lawful, geographical restriction should fulfil the three conditions for permissible restrictions on movement, listed above. In terms of the legal basis, according to the GC No.27, domestic law authorising restrictive measures should be clear and precise and the imposition of these measures in a particular case should be based on a reasoned decision. Art.41(1)(d) of the Law 4375 provides that the applicant’s freedom of movement may be restricted to a part of the Greek territory based on a decision of the Director of the Asylum Service. The wording of this provision lacks the necessary precision and clarity to prevent disproportionate use of this measure. In practice, geographical restriction is reportedly not based on a reasoned and individualised decision of the head of the Asylum Service. Thus, depending on a particular case, geographical restriction may fail to satisfy the principle of lawfulness. The protection of public order might be accepted by the HRC as a legitimate aim of restriction to the islands, yet the necessity and proportionality of this measure are questionable. First, this measure is systematically applied to all asylum seekers arriving at the Greek islands after 20 March 2016, except from those qualified as vulnerable. Secondly, less intrusive measures are available and would simply involve transfer of asylum seekers to the mainland. This is all more apparent in view of the gradual extension of the length of restriction to the islands. It is submitted that the obligation to stay on an island for several months, imposed systematically and without individualised assessment on every person seeking asylum in Greece, and exposing individuals to dire living conditions (see below), tends to go beyond the permissible restrictions on freedom of movement.

Under the ECHR, the difference between restriction on freedom of movement and deprivation of liberty is the intensity of the measure. Could then geographical restriction amount to de facto detention? To evince the nature of a restrictive measure, the ECtHR assesses cumulatively the type of the measure, its duration, effects, and manner of implementation. In Guzzardi v. Italy, the Court found that, cumulatively, factors characterizing the applicant’s restriction on movement amounted to detention. The applicant was obliged to stay on a small area of an island for 16 months, where he was subject to a night-time curfew, required to report to the authorities twice a day and inform them of the telephone number of his correspondent, and his trips to the mainland required the consent of the authorities and were supervised by the police.

Some features of restriction to the Aegean islands resemble those imposed on Mr. Guzzardi. In terms of the practical manner of implementation, most people restricted to the islands are accommodated in the RICs. They are allowed to leave the premises during the day and required to return at night. Those accommodated outside the RICs (mainly accommodation ensured by the NGOs and UNHCR) should systematically report to the authorities (every second day as of 2016). In practice, people are stranded on the islands for several months. Crucially, geographical restriction has detrimental effects on the people subject to it. As of December 2017, the number of people restricted to the islands (around 14,600) considerably exceeded the capacity of the RICs and other accommodation (around 8,000), which results in severe overcrowding. Material conditions in the RICs are substandard, particularly in terms of food supply, sanitation and hygiene, access to health care, and protection from violence (for recent accounts, see here and here). Taken cumulatively, the prolonged obligation to remain on the islands, with restrictions on freedom of movement on the islands themselves, in substandard material conditions and the uncertainty about one’s future prospects may well reach the threshold of deprivation of liberty.

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How to cite this blog post (Harvard style)

Majcher, I. (2018) The EU Hotspot Approach: Blurred Lines between Restriction on and Deprivation of Liberty (PART II). Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2018/04/eu-hotspot-0 (Accessed [date]).