European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment
(CPT)

Factsheet
March 2017

CPT/Inf(2017)3

Factsheets are issued under the authority of the Executive Secretary of the CPT.
They aim to present the CPT’s standards on key issues. However, they do not claim to be exhaustive,
in particular as regards the references to CPT country visit reports.

Immigration detention
Introduction


Immigration detention is a primary focus of the work of the CPT. It has carried out
hundreds of visits to immigration detention facilities, and has developed a detailed set of
standards.



The CPT’s standards build on legal principles originating from international (human rights)
instruments, such as the European Convention on Human Rights (ECHR),1 the Committee of
Ministers’ Twenty Guidelines on Forced Return,2 relevant United Nations (UN) treaties, and
the 2008 European Union (EU) Return Directive.3



A foreign national may be deprived of his/her liberty following a(n) (alleged) violation of
the legislation related to aliens, such as illegal entry, illegal residence, etc. Frequently, such
detention is referred to as ‘immigration detention’, which is a form of administrative
detention in most Council of Europe member states.



Under the terms of Article 5 of the ECHR, this form of deprivation of liberty is permitted,
provided that action is being taken either with a view to deportation, or in order to prevent
unauthorised entry into the country. Deprivation of liberty of irregular migrants shall be
neither arbitrary nor the automatic consequence of an (alleged) violation of aliens legislation.
In other words, immigration detention should be exceptional, proportionate and, by
consequence, an individual measure necessary in order to prevent unlawful immigration.



In line with its administrative nature, immigration detention must not be punitive in
character: it is not a sanction or a punishment. Therefore, immigration detainees should be
afforded both a regime and material conditions appropriate to their legal situation.



“Asylum seekers” are not “immigration detainees”, although the persons concerned may
become so should their asylum application be rejected and their leave to stay in a country
rescinded.

In particular Articles 3, 5 and 8.
CM(2005)40 final, 9 May 2005; in particular Guidelines 10 and 11.
3 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards
and procedures in Member States for returning illegally staying third-country nationals.
The Directive applies to all European Union Member States except the United Kingdom and Ireland. To the extent that
it applies to those who enter the territory without authorisation, it applies to Denmark and the Schengen associates
(Iceland, Liechtenstein, Norway and Switzerland).
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