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European Voice
weekly, 17-23 November 2005, Brussels
Balancing the rights of states and immigrants
by Judith
Kumin
If any good comes out of last month’s tragic fire at Amsterdam’s
airport detention center, in which at least 11 people died, it
will be that some light is shed on the widespread, but
under-scrutinized, practice of immigration detention. At
airports, land borders and many other locations throughout the
European Union, prisons – some 200 of them, often
euphemistically called repatriation centers – hold men, women
and children whose only “crime” was to seek a better life than
the one they had at home.
Though initial reports
suggested that the victims of the fire were drug traffickers, it
now appears that all were so-called illegal aliens awaiting
expulsion from the country, including persons whose applications
for asylum had been turned down, or were being referred to
another European country deemed responsible under the “Dublin
II” Regulation.
This form of
administrative detention is particularly difficult to grasp. It
is neither pretrial detention nor imprisonment after conviction
by a court of law. In many countries, a legislative “grey area”
leaves immigration authorities wide scope to decide who is
detained, for how long, and under what conditions. Judicial
oversight is erratic. The public knows relatively little about
this practice, in part because journalists are rarely allowed to
visit immigration jails.
Unlike prisoners in
criminal custody because they have been accused or convicted of
offenses, immigration detainees often do not know why they are
being held, or for how long. In many cases they cannot read the
detention order, written in a language they do not understand.
Unlike penal facilities, immigration detention centers are not
always subject to clear rules about such basics as cell size,
medical services, visitors or outdoor exercise. In regular
prisons, children and adults are not held together. In
immigration detention facilities, it is quite common to find
youngsters – including unaccompanied children – locked up
alongside unrelated adults.
Over the past decade
the European Union has made considerable progress towards
harmonizing its asylum laws and procedures, but no common
standards apply to immigration detention. The Commission’s
proposal for a Directive on common standards and procedures for
returning illegally staying third-country nationals, unveiled on
September 1, addresses this issue only in very general terms.
The provision labeled “Conditions of temporary custody” requires
Member States to ensure that immigration detainees are “treated
in a humane and dignified manner with respect for their
fundamental rights and in compliance with international and
national law” – obligations already incumbent on States.
Grounds for detention
as well as duration and conditions of detention vary widely from
one country to another, as illustrated in a detailed
170-page report by the NGO Jesuit Refugee Service (JRS) on the
administrative detention of asylum-seekers and irregular
migrants in Europe. The European Parliament has
expressed its concern, and called for these centers to meet
human rights standards. Whatever the conditions, anxiety,
sorrow, boredom and despair are common features in these places,
and special care for inmates who have suffered from war or
trauma in their own countries is far too rare.
It is not just the human cost of
immigration detention which is high. A German court last year
put the price tag at 28,470 Euros per person per year, more than
the average per capita gross domestic product.
There is no doubt that States need to be able to detain and
deport people who are not entitled to remain on their territory,
and the question of how to balance the sovereign right of States
to control their borders against the obligation to respect
individual human rights -- including the right to seek and enjoy
asylum from persecution – is a tricky one.
But for the sake of
the individuals held at Europe’s borders, the practice of
immigration detention merits a closer look.
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