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

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 third post of Border Criminologies' themed series 'Hotspots and Plethora of Freedom-Restricting Measures', organised by Izabella. 

Conclusions

To sum up, the hotspots in Italy and Greece appear to involve both deprivation of liberty and a restriction on movement. The practice frequently lacks transparency and the nature of the measures applied in the hotspots is ambiguous. In the same facilities, part of the population is deprived of their liberty, while the other part is subject to a restriction on their freedom of movement. In addition, at different stages of the procedures, the same person may be detained and later subject to a restriction on their movement. Both measures are strictly regulated under international human rights law. However, since more extensive guarantees apply to detention, it is crucial to evince whether the measure at hand constitutes a restriction on the person’s freedom of movement or it amounts to deprivation of liberty. Domestic classification is not decisive in this respect.

The measures of confinement in the Italian and Greek hotspots are frequently at variance with human rights norms. In the case of Italy, asylum seekers are placed in de facto detention without any legal basis during identification and fingerprinting processes. In Greece, the measure is provided for in domestic legislation but is labelled “restriction of liberty,” while in practice it amounts to a deprivation of liberty. Detention in the RICs thus lacks a clear and foreseeable legal basis and appears to breach the requirement of lawfulness. In both countries, the systematic character of detention conflicts with the principles of necessity and proportionality. In addition, because of the de facto character of deprivation of liberty, the affected people do not have access to detention-related procedural standards. Furthermore, informal practice of enforcing pre-removal detention in the hotspots falls short of domestic laws and, consequently, is unlawful under international human rights law. In turn, restriction to the Aegean islands may breach the right to freedom of movement due to its systematic and disproportionate character. Depending on individual circumstances, the intensity and the effects of geographical restriction on the person concerned may reach the threshold to be qualified as a deprivation of liberty.

In both Italy and Greece, de facto detention has been induced by the EU. Italy was criticized for the low rate of fingerprinting and was pressured to adopt measures, including coercive ones, to compel people to give their fingerprints. The most recent legislative amendments making the refusal to be fingerprinted a ground for pre-removal detention reflect the stance of the EU. In fact, in its March 2017 Recommendation on the improvement of efficiency of return, the European Commission explicitly urges states to consider refusal to provide fingerprints as a factor revealing the risk of absconding and thus justifying detention. Greece was compelled to implement the EU-Turkey deal and increase the rate of returns to Turkey. The measure of “restriction of liberty” in the RICs was meant to facilitate the return proceedings. Thus, the hotspot approach has led to the increased use of detention for people arriving on European shores in search of protection.

All measures of confinement carried out in the hotspots need a clear legal basis, which complies with international human rights law. People who are not allowed to leave the premises should be afforded all guarantees protecting them from arbitrary detention. Detention should be as short as possible, applied as a last resort, where no less coercive measures are available, subject to judicial review, and carried out in adequate material conditions. In turn, restriction on freedom of movement imposed on people who passed already the first identification and fingerprinting procedures should be based on an individual assessment and applied when there are no less intrusive measures to achieve a legitimate objective. The regulation of various measures of confinement should be guided by the UNHCR’s Guidelines on Operational Protection in Camps and Settlements. These parameters need to be urgently defined in the domestic legislation of both countries and implemented in practice because there are large numbers of people detained in or restricted to the hotspots (approximately up to 12,000, see here and here) in substandard material conditions and without adequate procedural safeguards. In addition, and paradoxically, the EU is urging Italy and Greece to increase the capacities of the existing hotspots and to set up new centres.

Beyond the exceptional measures applied currently in Italy and Greece under the banner of the “refugee crisis,” the hotspot approach is seemingly set to become a permanent tool to manage migrants and asylum seekers arriving in the EU. In fact, “hotspot areas” are explicitly addressed in the 2016 EBCG Regulation and the draft proposal for the amended EASO Regulation, as currently negotiated. Furthermore, the French president proposed opening hotspots in Africa, thereby reviving a recurring idea suggested since the mid-1980s to set up external processing centres. Against this background, the analysis of the functioning of the current hotspots from the perspective of the right to liberty and freedom of movement is much needed. This blog post is followed by contributions from Italian and Greek practitioners, detailing the most salient aspects of the implementation of the hotspot approach in both countries. In their first post, Carlo Caprioglio, Francesco Ferri, and Lucia Gennari from the Association for Juridical Studies on Immigration reflect on the Italian hotspot system and highlight its three disconcerting features, notably arbitrary differentiation between asylum seekers and “economic migrants,” detention without legal basis, and forced fingerprinting. Their second contribution illustrates the mode of functioning of this system at the example of the hotspot in Taranto. In turn, lawyers from the Greek Council for Refugees, Mary Malafeka and Stavros Papageorgopoulos critically discuss the freedom-restricting measures applied on the islands of Lesvos and Samos, respectively. Their posts focus on the geographical restriction and they give first-hand information on the modalities and damaging effects of this measure. In addition, Malafeka offers insight into a  practice of immigration detention upon arrival which emerged recently on Lesvos.

Along with the hotspots, the human rights framework and analysis proposed in this blog post are relevant to other measures of confinement across the EU, which blur the lines between restriction on freedom of movement and deprivation of liberty. An example of such ambiguous facilities are reception centres in the Czech Republic and Slovakia, where asylum seekers are accommodated during asylum procedures but cannot leave the premises during the initial identification and screening phase which lasts up to three/ four weeks. More frequently, measures formally labelled restriction on movement, which in practice amount to de facto detention, are carried out at the border. While most of the EU member states have detention facilities in airport transit zones, some countries, including France, Germany, and the Netherlands, regard detention in these facilities as merely accommodation during border asylum procedures or measures preventing irregular entry in the territory. More recently, analogous practice became patent at land borders. In the Hungarian transit zones at the country’s border with Serbia and Croatia, asylum seekers may be held for up to four weeks, yet authorities refuse to qualify this measure as detention. The recent ECtHR chamber ruling in Ilias and Ahmed v. Hungary confirms that this practice constitutes de facto detention (the case is currently being considered by the Grand Chamber).

Note: A shorter version of this paper was presented at the 2^nd Refugee Law Initiative (RLI) annual conference ‘Mass Influx? Law, Policy and Large-Scale Movements of Refugees and Migrants,’ held in London, in June 2017. The author wishes to thank practitioners working on the ground for up-to-date information on the measures carried out in the hotspots, Annapaola Ammirati, Dario Belluccio, Francesco Ferri, and Guido Savio (Association for Juridical Studies on Immigration), Elisa Maimone (Italian Council for Refugees, as of September 2017), and Alexandros Konstantinou (Greek Council for Refugees). For more detailed information on the operation of the hotspots in these two countries, see Global Detention Project’s immigration detention profiles of Italy and Greece. 

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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 III). Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2018/04/eu-hotspot-1 (Accessed [date]).