Practice of the Detention of Refugees

The „Fortress Europe“ works almost perfectly. With the Schengen and Dublin agreements as well as national legal restrictions, the countries of the rich Europe have created a „cordon sanitaire“ against the migration and refugee movements at their borders which is nearly impenetrable for the refugees. In this way, the countries of the European Union have also avoided the responsibility for the removal of the reasons of flight. However, for those persecuted in their native country who succeeded in escaping, the residence status is also precarious. The situation is characterized by ignoring, to a great extent, individual plights and violations of human rights in the countries of origin, and getting rid of these people through deportation, secured through excessively imposed detention.

International agreements, such as the European Convention on Human Rights and Fundamental Freedoms of 1950, the International Covenant on Civil and Political Rights of 1966, and the UN General Assembly Resolution on Defense of the Person against Arrest and Detention, as well as national constitutions and laws have frequently been violated in this connection. In the Treaty of Maastricht the European Union has taken responsibility for asylum policy. Therefore, the European Parliament has a very specific controlling function.

The ELDH condemns strongly the present practice of the detention of refugees, in particular the securing of their deportation through detention pending deportation, and demands the following:

1. Help instead of Repression

The starting point for dealing with non-EU citizens who seek refugee must be the consideration that the people affected are in need.

2. Observing of Human Rights

All measures must therefore stand comparison with the obligation to guarantee human rights and provide help for those affected.

This means above all, that a comprehensive protection against deportation is to be granted in situations of unsolved crises where in the countries of origin fundamental human rights are threatened. Deportation should only take place when it is ruled out that life, body and freedom of those affected can be endangered.

Imprisonment should not take place to establish identity or to carry out the deportation.

3. Fundamental Change in the Practice of the Detention of Refugees

The demands above are not sufficiently respected in particular in the regard to the following matters:

• the growing practice of excessive detention of refugees in order to establish their identity or for deportation
• the frequent disproportionate length of detention
• the growing practice of detention in police custody or in penal institutions, also together with criminal offenders
• the occasional arbitrary treatment of those detained
• the additional deprivation of liberty during imprisonment through lack of opportunities to work, lack of opportunities for free time, restricted social contacts to relatives, friends and representatives of relevant non-governmental organizations
• the inadequate respect for religious and cultural needs

4. A constitutional procedure

The ELDH furthermore demands unified, legally based procedures through the courts or other independent bodies in order that

• the right of those affected to residence or their deportation should be reviewed
• the necessary measures in the case of an eventual deportation should be laid down
• the conditions during detention should be reviewed
• an independent legal review body should be able to be petitioned
• those affected should be informed about their legal rights in their own language and in writing at the beginning of their detention, and the execution of these rights should be guaranteed
• those affected should be entitled – in case of need free of charge – to obtain competent advice and to be represented by lawyers during their procedure

5. Human Conditions of Imprisonment

The ELDH demands

• that those affected should be given satisfactory social, medical and psychological care
• that the protection of families, guaranteed in many constitutions, European agreements and international conventions, should also be guaranteed in deportation proceedings
• that the principle of the welfare of the child as contained in the „UN-Convention on the Rights of Minors“ should be taken into consideration as paramount in all official procedures.