Rethinking Immigration Detention During and After Covid-19: Insights from Italy

Guest post by Emanuela Roman. Emanuela is a researcher at FIERI – Forum of International and European Research on Immigration in Torino, Italy. She completed her PhD in Human Rights at the University of Palermo, Law Department in 2017. Her main research interests are on the externalisation and informalisation of EU migration, asylum and border management policies and their impact on the human rights of (forced) migrants, immigration detention in Italy and Europe, and the reception and integration of applicants and beneficiaries of international protection in Italy. Emanuela is also a students’ supervisor at the Human Rights and Migration Law Clinic, International University College of Turin. This post is part of our new themed series on border control and Covid-19.

When the Covid-19 epidemic started to spread globally, the first measures introduced by states were movement limitations, border closures and the suspension of international travels. However, the very same restrictions to international mobility that for some people have caused unpleasant inconveniences (e.g. travels cancelled, need to review plans, etc.) and for others a subsistence issue which affected their possibility to earn their living and provide for their families (e.g. migrant workers normally employed in seasonal work in agriculture), for some people in Europe they may represent a chance for freedom.

Under EU law (Directive 2008/115/EC, so-called Return Directive, Art. 15), third country nationals waiting to be returned to their country of origin may be deprived of their liberty in some circumstances (e.g. when there is a risk of absconding) in order to organise and carry out their removal. However, in the current context, restrictions to international mobility make almost all returns impossible. Is it legitimate to detain people who cannot be returned, and for whom it is hard to plausibly foresee when their removal can be carried out?

Since the beginning of the lockdown, appeals and statements by civil society organisations, national ombudsmen (e.g. in Italy, France and Spain) and international organisations (e.g. the Council of Europe Commissioner for Human Rights) have increased. They are based on two main arguments: 1) the unlawfulness of detention when there is no reasonable prospect of removal; 2) the preeminent need to safeguard the right to health, which in many cases is hampered by the difficulty (or impossibility) to adopt the necessary sanitary measures and social distancing inside pre-removal detention centres.

As concerns the former, it is the Return Directive at Art. 15 par. 4 that states: “When it appears that a reasonable prospect of removal no longer exists

Seemingly, most European countries have opted for the gradual release of migration detainees, based on a case-by-case evaluation of the individual’s health conditions, the hygienic conditions in a given centre and the impossibility to carry out returns in a predictable timeframe. The latter circumstance proved to be particularly relevant when a detainee’s maximum period of detention is about to end.

In this regard, the case of Spain is noteworthy. On March 20 authorities started to release migrants from the seven pre-removal detention centres (CIE is the Spanish acronym) operating in the Spanish mainland and islands. In early April the Ministry of Interior stated that the government aimed to release all migrants and temporarily close all CIEs. By contrast, the situation in the two centres for the temporary stay of migrants (CETI is the Spanish acronym) located in the enclaves of Ceuta and Melilla has not improved, but rather worsened. Here migrants, including many vulnerable people, still languish in essentially closed and overcrowded facilities. The situation in the CETI of Melilla is particularly worrying: despite an estimated capacity of around 500 places, the centre is currently hosting more than 1.600 persons. Conversely (and rather paradoxically), in the Spanish mainland and islands the process of empting the CIE has been gradual but rapid: before the declaration of the state of alarm on March 13, the centres were occupied by 59% of their capacity; at the end of March the occupation rate had decreased to 25% and the first week of April to 9%. On 6 May 2020, Spain reported that its pre-removal detention centres were empty.

The Spanish experience is particularly interesting because, notwithstanding some exceptions, it was overall characterised by a collaborative process involving both institutional and civil society actors in the organisation of a relatively orderly and safe release of migration detainees. The Defensor del Pueblo, representing also the requests coming from civil society organisations (CSOs) and detainees, engaged in a permanent dialogue with political, administrative and judicial authorities. The fact that the maximum period of detention in Spain is two months has probably contributed to rapidly reaching an agreement on the impossibility to carry out any removals within that timeframe. The release process was made possible by the cooperation between police, judges and local authorities. In addition, upon release all persons who did not have a house to return to were included in a humanitarian programme whereby they could access accommodation, food and other basic services thanks to a specific agreement signed by the Ministry of Interior with local NGOs and other social entities.

A common argument against the release of detained migrants concerns precisely what may happen afterwards. For those who do not have a place to stay and cannot count on the support of a family or close networks, there is a risk to end up on a street in extremely precarious living conditions – a situation that is even more dangerous (both for oneself and for others) in the current health emergency. A community-based approach as the one implemented in the Spanish mainland looks promising: even though it was developed in a context of crisis, it could represent a viable alternative to immigration detention also for the future – and possibly a practice that could be transferred to a country like Italy.

The Return Directive at Art. 15 par.1 establishes that states may keep an individual in detention “unless other sufficient but less coercive measures can be applied effectively in a specific case”. This wording clearly aims to prioritise alternative measures to the deprivation of personal liberty, which should always be a measure of last resort. Under Italian law, this norm was transposed into Art. 14 par. 1-bis of the Unified Text on Immigration (Legislative Decree 286/1998). Based on this provision, if a third country national has a valid passport, authorities may require that, instead of detention, he/she abides by one or more of the following measures: a) rendering one’s passport; b) obligation to stay in a designated residence; c) regular reporting to police.

Even though in Italy the possibility to resort to alternatives to detention formally exists, on the one hand, the passport requirement makes them applicable only in a limited number of cases, and on the other hand, the praxis of competent authorities is generally to discard them: immigration detention is almost automatic. Conversely, in some European countries (UK, the Netherlands, etc.) the use of alternatives to detention is more widespread. The most positive experiences are those where non-detention is associated to case management. This implies a tailor-made project usually coordinated by civil society organisations in cooperation with local authorities and public services, which foresees the active involvement of migrants in finding a solution to their case, possibly through regularisation.

Thus, the Covid-19 epidemic may become an opportunity to test alternative approaches to immigration detention based on cooperation between institutional actors and civil society, and on the active involvement of migrants. This would not amount to yielding to a force majeure event such as the pandemic; rather, it would represent a wise and proactive response to the emergency, which would increase Italy’s compliance to EU law.

An extended version of this blogpost was originally published in Italian on the FIERI website. 

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How to cite this blog post (Harvard style) 

Roman, E. (2020). Rethinking Immigration Detention During and After Covid-19: Insights from Italy. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/06/rethinking [date]