Deprivation of liberty of irregular migrants
In the course of its visits, the CPT has noted that a number of member States of the Council
of Europe have made a concerted effort to improve the conditions of detention for irregular
migrants. However, there are still far too many instances where the CPT comes across places of
deprivation of liberty for irregular migrants, and on occasion asylum seekers, which are totally
unsuitable. An illustrative example of such a place would be a disused warehouse, with limited or
no sanitation, crammed with beds or mattresses on the floor, accommodating upwards of a hundred
persons locked in together for weeks or even months, with no activities, no access to outdoor
exercise and poor hygiene. CPT delegations also continue to find irregular migrants held in police
stations, in conditions that are barely acceptable for twenty-four hours, let alone weeks.
In some States, irregular migrants are detained in prisons. In the CPT’s opinion, a prison
establishment is by definition not a suitable place in which to hold someone who is neither accused
nor convicted of a criminal offence. Interestingly, prison managers and staff in the various
establishments visited by the CPT often agree that they are not appropriately equipped or trained to
look after irregular migrants. In this context, the CPT wishes to reiterate that staff working in
centres for irregular migrants have a particularly onerous task. Consequently, they should be
carefully selected and receive appropriate training.
Despite the existence of many detention facilities for irregular migrants in Council of
Europe member States, there is still no comprehensive instrument covering the whole of the
European continent5 and setting out the minimum standards and safeguards for irregular migrants
deprived of their liberty, in line with the specific needs of this particular group of persons.
The 2006 European Prison Rules apply to those irregular migrants who are detained in
prisons. However, it is stressed in the Commentary to the Rules that immigration detainees should
in principle not be held in prison. Therefore, the Rules do not address the special needs and status of
irregular migrants, such as those issues related to the preparation and execution of deportation
procedures. It should be noted here that in accordance with Article 5 (1) f of the European
Convention on Human Rights, irregular migrants may be deprived of their liberty either when
action is being taken with a view to deportation or in order to prevent an unauthorised entry into the
country. The purpose of deprivation of liberty of irregular migrants is thus significantly different
from that of persons held in prison either on remand or as convicted offenders.
Conditions of detention for irregular migrants should reflect the nature of their deprivation
of liberty, with limited restrictions in place and a varied regime of activities. For example, detained
irregular migrants should have every opportunity to remain in meaningful contact with the outside
world (including frequent opportunities to make telephone calls and receive visits) and should be
restricted in their freedom of movement within the detention facility as little as possible. Even when
conditions of detention in prisons meet these requirements – and this is certainly not always the case
– the CPT considers the detention of irregular migrants in a prison environment to be fundamentally
flawed, for the reasons indicated above.
More generally, in certain countries, authorities routinely resort to administrative detention
number of guarantees; however, the applicability of this legislation is limited to EU member States. Reference should
also be made to the Guidelines on human rights protection in the context of accelerated asylum procedures, adopted by
the Committee of Ministers of the Council of Europe on 1 July 2009.
Directive 2008/115/EC of the European Parliament and of the Council of the European Union of 16 December
2008 on common standards and procedures in Member States for returning illegally staying third-country nationals
provides, inter alia, standards related to irregular migrants deprived of their liberty. The Directive is applicable in most
EU member States and some other countries and should be transposed into national legislation by the end of 2010.