A snapshot of immigration detention in the days of Covid-19. This is what the Italian Coalition for Civil Liberties and Rights (Coalizione Italiana per le Libertà e i Diritti Civili, CILD) has set out to do with the dossier “Migrant detention in Covid-19 times“, in which data from February to June 2020 on arrivals by sea, detention in immigration detention centres (Centri di permanenza per i rimpatri, Cpr), hotspots, other ad hoc facilities and quarantine ships are analysed. Among the many places of detention of migrants, these are the structures where the detention of foreigners in the period of health emergency has been most resorted to, also due to the substantial closure of land borders.
As the dossier was being finalised – July 2 – there were 451 people in the hotspots, 332 in the Cprs, 207 on the ship Moby Zazà and an indefinite number, due to lack of data on the matter, of people detained in ad hoc structures opened during the health emergency in Sicily for those who landed on the Italian coasts to spend quarantine. These facilities, along with the hotspots, have become temporary places of quarantine and restriction of personal liberty – or at least of movement – in the absence of a judicial decision and in potential conflict with Article 5 of the European Convention on Human Rights for reasons similar to those established by the European Court of Human Rights in the judgment Khlaifia v. Italy.
The dossier also looks at the Cprs, where the detention of foreigners awaiting repatriation can last up to 180 days (or even a year in exceptional cases of detention of asylum seekers) and where new entries continue to occur despite the continuing blockade of expulsions.
A focus is then dedicated to the quarantine ships introduced after the so-called “Closed Ports Decree” of 7 March 2020, which established that during the whole period of the health emergency Italian ports cannot be considered as Place of Safety for ships flying foreign flags that have carried out operations outside the Italian SAR area. Two ships have therefore been identified, first the Raffaele Rubattino and then the Moby Zazà, as floating hotspots off the coast of Palermo and Porto Empedocle respectively, which have hosted and continue to host people disembarked from vessels flying a foreign flag, or arrived independently on the Sicilian coast.
What CILD found when analysing the evolution of the situation in these places of detention is a series of lacks.
First of all, there is a lack of information for people from the inside and outside trying to understand what is happening in administrative prisons. While it is possible to have a daily update on arrivals by sea through the dashboard of the Ministry of the Interior, there are no official public data about the many places of administrative detention of foreigners. In this context, the informative initiatives of the National Guarantor for the rights of persons detained or deprived of their personal liberty, which has published 35 periodical bulletins in the health emergency phase, providing data, numbers, information and recommendations related (also) to the administrative detention of foreigners, have proved even more valuable. But although these initiatives are fundamental, in its dossier CILD underlines how useful and necessary it would be to have periodic statistics – as it happens for detention in prison through the website of the Ministry of Justice – so as to allow civil society to effectively monitor what happens in such places.
In addition, there is still a lack of judicial control over the legitimacy of detention in hotspots. As emerges from the dossier and other authoritative sources, in fact, the detention in hotspots and ad hoc structures continues to be implemented in Italy in the absence of a legal basis, i.e. a measure from a judge ordering or confirming the detention in these places. Therefore, the Italian Government is still not implementing the Khlaifia judgment, by which the European Court of Human Rights condemned Italy for the detention without the intervention of a judge and without a legal basis suffered by some Tunisian citizens in 2011.
In the period of the health emergency, even detention in the Cprs is to be considered without legal basis, as international mobility and therefore the possibility of repatriation has been suspended. If individuals who cannot be repatriated keep being detained, the risk is to forget that detention in administrative detention centres is exclusively preparatory to repatriation, as established by the Return Directive and the Consolidated Immigration Act (Legislative Decree 286/1998). And if repatriation is not possible, any detention must be considered illegitimate. This is an essential propaedeuticity that seems to have been forgotten by the Italian government, which has chosen not to empty the Cprs despite the blockade of returns to which the administrative detention should be finalized. As proof of the inutility of the detention during this period, as the dossier was being finalised – 2 July – there was no news of any repatriations carried out, or of a date when it would be possible to resume such activity.
In addition a recent decree, in introducing the regularization procedures, has ordered the suspension of the expulsion procedures until August 15, which is the deadline for the submission of the request for regularization. This is another reason to consider the detention, at least of those who meet the requirements to access regularization, as illegitimate.
Ultimately, beyond the emergency, CILD believes that the time has come to seriously question the appropriateness of administrative detention, given its substantial objective failure in terms of effectiveness and violation of the fundamental rights of detainees. Encouraging alternatives to detention, as requested by the International Detention Coalition and the EU itself, seems to be the only remedy to ensure greater legality, public safety and security of the rights of those subject to repatriation procedures.
Account must also be taken of the lack of guarantees when carrying out quarantine on ships. While it is true that the need to carry out quarantine for persons disembarked in Italy during this emergency is scientifically proven, such measures must nevertheless respect the principle of proportionality and must take into account the experience of those who land on our coasts after a troubled journey, fleeing situations of torture, serious exploitation or great poverty.
While it is desirable that quarantine be carried out on the mainland, in the exceptional cases of quarantine on ships it should be ensured at least that medical isolation on the ship is a proportionate, non-discriminatory and arbitrary measure; that the conditions of the ship respect human dignity; and that vulnerable persons accommodated have an immediate possibility to be evacuated and receive assistance in appropriate facilities on land.
Almost a month has passed since the deadline of 14 June of the contract for the Moby Zazà ship. In view of the high cost of this contract – around 1 million EUR for one month -we hope that quarantine ships will not become floating hotspots indefinitely and that future quarantine measures for new arrivals will be taken on land. Otherwise, there is a risk that emergency detention solutions will be normalised into practice. The risk that quarantine procedures on ships will turn from exceptional into normale, and therefore discontinuous, discriminatory and unjustified practice, is concrete if we only take into account the extension in place for the ship Moby Zazà and what happened with hotspots, introduced in 2015 as an exception measure and then become an institutional place to detain those who land without a formal title to enter Italy.
Finally, the evolution of immigration detention during the pandemic shows a lack of humanity and legality in the Mediterranean: the closure of Italian ports and the Italian and European participation in the Libyan SAR in operations that seem to lead to collective pushbacks to Libya are only some indicators of this lack. If it is true what is stated in the publication Remote Control – which reports about the use of European aircrafts to facilitate the interception and return to detention centers in Libya of those who flee from those same centers where human rights are not respected – it is clear the violation of the law of the sea that requires landing in a safe place – which evidently cannot be Libya.
Civil society must state clearly that the principle of non-refoulement must be respected in international waters and Italian and European military forces, as well as Italian and European contributions to cooperation, cannot be invested to facilitate actions contrary to the law of the sea and the principle of non-refoulement.
Ultimately, the pandemic we are experiencing must impose a reflection on civil society, the Italian government, other European countries and the European Union that starts from a critical review of current migration policies that are based on the combination of outsourcing and widespread detention of migrants. The failure of the current migration policies, in terms of human lives disappeared in the Mediterranean or returned to Libyan hell, of widespread illegality of administrative detention, is before everyone’s eyes. During the health emergency the critical aspects of the security approach have only been amplified. The return to normality, which we all hope for, risks giving us back a “minor” normality, even more devoid of rights and guarantees in the specific field of immigration detention. In fact, the exponential increases in the numbers of presences found at the beginning of July in immigration detention centres and hotspots in the absence of a legal basis are worrying. There is concern about the proliferation of detention centres that lack any form of monitoring and control, the continuation of the activities – initially foreseen as temporary – of the quarantine ships, the protraction of the closure of Italian ports.
Without prejudice to the need for a critical review of current migration policies, administrative detention, regardless of the name given to the various existing administrative prisons, must be addressed taking into account fundamental rights. This implies introducing a primary source legislation that clearly recognizes the rights of detained persons and judicial remedies so that these rights are not merely enunciations, or paper rights.
