Detention of Undocumented Migrants at Sea

Guest post by Almodis Peyre. Almodis is a PhD student at the University of Jean Moulin Lyon 3 (France). Her research interests include detention at sea, policing and human rights effectivity. She’s part of the ANR Programm MERCRO about the legal repercussions of the superposition of legal regimes on the effectivity of the police at sea. This is the third installment of Border Criminologies themed week on 'The other sites of detention', organised my Marion Vannier. 

A 'stowaway' is a “person who, in any port or place in its vicinity, hides in a ship without the consent of the ship's owner or captain or any other person in charge of the ship and who is on board after the ship has left that port or place.” The primary characteristic of a 'stowaway' is based on his/her fraudulent entry onboard without the consent of the authorities. The detention of undocumented migrants, 'stowaways', on private ships is one strategy among many of how states address "irregular" immigration. Its use ensures continuous control over the migrant without securing access to any legal safeguard. However it has not received much scholarly attention. In this post, I examine French policies around the detention of undocumented migrants at sea, to explore the ramificaitons of this practice for our wider understanding of border control.

Detention at sea is provided under article L.5531-19 of the Transport Code and allows a ship's captain to detain any person who represents a danger to the preservation of the ship, its cargo or the safety of the persons on board. Detention at sea – as an administrative form of detention – is employed to prevent a breach of public order. To be detained, the person must therefore, by his or her behaviour, carry a risk to disorder (possession of weapons or drugs, violent behaviour etc.) regardless of whether an offence has actually been committed. But, to avoid illegal landing and because 'stowaways' are often perceived as an economic and social danger (see Amaha Senu, The global Assemblage of Multi-Centred Stowaway Governance, pp. 52-63),  they are usually detained onboard. Undocumented migrants on private ships are usually deported without being able to reach the state of destination. They usually are repatriated by plane in the first port of call or stay on board until the return to port of embarkation.

Detention of 'stowaways' is a much-overlooked aspect of immigration detention. Since there is no obligation to declare a detention at sea to the International Maritime Organization (IMO), it is hard to know how many people are detained every year onboard. According to IMO, 1420 'stowaways' were detained in 2017, which represent a cost for companies of 9.5 million US$. The cost – 6700 US$ per 'stowaway' – combined with all the negative stereotypes attached to undocumented migrants on private ships (pirates, terrorists or migration professionals) has lead to dramatic situations. For example, in the famous case of Mc Ruby, several 'stowaways' were killed or thrown overboard.

According to Migreurop, undocumented migrants on private ships can be detained for the entire duration of  the journey, sometimes in inhuman or cruel conditions. French law merely requires that facilities permit detention onboard. There are no criteria for determining what is deemed an acceptable place of confinement. A wide margin of discretion is thus left to the ship's captain to determine the quality of the premises which often leads to poor detention conditions.

Even if this form of confinement amounts to deprivation of liberty, detention onboard rarely gains media attention and there is very little case law on this subject. Therefore, the rights of 'stowaways' on board are not protected. Because this is administrative detention,  the right to a lawyer – applicable in the event of criminal cases – is not ensured, unlike for pirates. Above all, even if this detention is subject to the prior approval of judge of liberties and detention (Juge des libertés et de la détention) and the prosecutor, its implementation is ultimately determined by the ship’s captain. It is important to note that the Controller General for places of deprivation of liberty (Contrôleur général des lieux de privation de liberté) – which is an independent administrative authority whose mission is to visit places of detention in order to ensure respect for the fundamental rights of individuals – does not intervene; thus undermining the protection of human rights in such places.

The detention of 'stowaways' differs from rescues of refugees at sea. In the latter case, even if the captain could detain a person onboard if there is a danger for the ships’ safety, migrants are not perceived as a burden; rather, the captain actively chooses to rescue people in distress. Furthermore, captains no longer fear financial penalties as care and repatriation costs in the event of disembarkation, as in the case for 'stowaways'. To a certain extent, bringing refugees safely to land becomes the objective of the journey. However, the reluctance of costal states to allow the disembarkation combined with penalties on companies interferes with ships’ duty to rescue migrants at sea under international legal instruments. In fact, there is a concerning increase of ships refusing to help people at sea for fear of a future refusal to disembark and possible sanctions.

Despite coming under separate legal regimes and reverting to different methods of exclusion (in one case, the hidden and nearly systematic detention and in the other the abandonment of individuals in distress), both 'stowaways' and refugees at sea are victims of a converging political will to stop immigration.

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How to cite this blog post (Harvard style) 

Peyre, A. (2021). Detention of Undocumented Migrants at Sea. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2021/04/detention [date]