While all across Europe the prison system is adapting, albeit with slowness and difficulty, to the restrictions imposed by the pandemic, another reality of detention – with only a few exceptions – seems barely to have been scratched. This is the detention of undocumented migrants, which is formally aimed at repatriation to the countries of origin.
Roughly 155,000 foreign citizens were repatriated from EU countries (including the UK) in 2019, most of whom passed through a number of closed centres, along the internal and external frontiers of the European Union. Yet, these centres, often times decrepit and the scene of protests, suicide, violence, are considered as indispensable tools for managing the migration phenomenon.
“With the pandemic, many European countries have rethought their detention measures: this is not the case for the so-called administrative detention” says Michael Flynn, director of the Global Detention Project, a Swiss organization that monitors the detention conditions of migrants and refugees in the world. As Flynn puts it, this is a further indication of the cruelty inherent to this system.
While Spain, European borderline case, in just a few weeks has closed all its eight CIE (Centros de internamiento de extranjero), most of the EU countries have adopted minimal corrective measures, rarely adopting those that, in jargon, are referred to as ‘alternatives to detention’: measures akin to house arrest and the obligation to sign for detainees, who in this case are waiting to be repatriated, which are provided for by legislation but seldom adopted.
Legal experts, civil society organisations and guarantors of detainees from different European countries urged that the centres be close, as they deem the detainment measures to be illegitimate – given the material impossibility of repatriation when most countries in the world have closed their own borders – and raised concern about the health conditions of the centres, which already witnessed several cases of infection.
Yasmine Accardo, spokesperson of the LasciateCIEntrare campaign, which since 2011 has been working to ensure the access of Italian journalists and civil society to centres, states that “we are living under an extraordinary regime, but repatriation centres are still managed in an ordinary way, with dramatic consequences”.
Health risks and reduced right of defence
In Italy, this issue first appeared in the newspapers – although not on the front page – at the end of March, when the news circulated that one of the people detained at the CPR (Return Detention Centre) of Gradisca d’Isonzo, in the Friuli-Venezia Giulia region, was positive for Covid-19. A video, shot by another detainee, shows the man sprawled on the ground and eventually carried on a stretcher by medical staff.
The denial of entry into and exit from Lombardy, provided for as of March 8th, did not prevent, about ten days later, the man from being taken out the Cremona province and sent to the CPR in Gradisca d’Isonzo, a region that was little affected back then. On March 26th, as soon as the news of infection leaked out, the Minister of the Interior issued a bulletin on this subject, urging the Prefectural Directorates competent for the eight CPR to “constantly monitor” the health conditions of detainees and to ensure “suitable equipment for hygiene care”.
In early April, these requests were bolstered by a further bulletin, which established a preventive isolation requirement for new entries, possibly reducing the capacity of the centres to make adequate space available.
However, a variety of sources confirmed that sanitary equipment, namely surgical masks, normally two per detainee, would be provided only two weeks later, without sufficient sanitation of the facilities nor distribution of hydroalcoholic gels – nor even testing of all detainees, even those coming from ‘red’ zones and in contact with operators and law enforcement officers.
In CPRs people continue to live in rooms with 4 or 5 other detainees and to eat side by side in shared spaces and on April 24th, the number of infected increased to 5 in the centre of Gradisca d’Isonzo itself.
In the same period, attendance within the centres decreased from week to week starting from late March, with a number of releases due to the expiry of detention periods and a reduction in new arrivals. On April 25th, there were 250 detainees as opposed to about 380 at the end of March, in six CPRs: Gradisca d’Isonzo, Turin, Rome, Palazzo San Gervasio (Potenza), Brindisi, Caltanissetta e Macomer (Nuoro). The centre in Trapani, whose figures in terms of detainees were already quite low, was totally vacated.
Lawyer Gianluca Vitale believes that inadequate facilities and poor health conditions also impinge on the right of defence. In the CPR of Turin, “I no longer invite my clients to the detention extension hearings, because they would find themselves in a small space, in contact with people from outside and without the necessary distance”, argues the lawyer, with specific reference to a hearing in which the judge, due to insufficient space “participated from the outside of the building’s window, where I was with my client and law enforcement agencies”.
Confiscation of personal telephones, which has become normal practice in several centres even though communication with the outside world must be guaranteed by law, creates further problems. “Although using WhatsApp or Skype applications is now allowed in prisons, as live interviews have been suspended those detained in CPRs often have to make do with a payphone, which makes it difficult to communicate with both family members and lawyers,” Vitale continues.
Following the release of several detainees upon the end of the six-month period or because they were granted asylum, others had their detention extended even when their country of origin, whether Nigeria, Morocco, Egypt or China, had closed their air borders in order to curb the spread. In parallel, requests for review made by several lawyers, claiming that it was impossible to guarantee adequate health measures in the centres, have to a large extent been rejected.
As Vitale puts it, these factors “confirm the legal vacuum in which the CPRs operate, places on hold that, unlike prisons, do not meet defined standards.”.
Against the background of Italy, the French government has stepped in with organizational measures, i.e. readjusting spaces and introducing more controls, only after the surfacing of cases of infection within several Centres de rétention administrative (CRA). On April 20th Adeline Hazan, contrôleur général – the equivalent of the Italian guarantor of detainees’ rights – asked the government to close all centres on a temporary basis.
“The legal grounds for detention measures have disappeared, because the prospects of removal are undermined and the right of defence is not guaranteed,” she wrote after visiting the Vincennes centre, where nine people had been found positive for Covid-19 and several detainees said they did not have access to hygiene equipment.
Some 900 people were detained in CRAs (Administrative Detention Centre) and in other border detention areas – in spite of court decisions in favour of the release of detainees – the activists of the Ȧ bas les CRA [Down with CRAs] network, reported at least 50 new arrivals around mid-April, in a context marked by protests and hunger strikes.
Beyond the Channel, the UK detention system is one of the toughest on the continent: it sets no time limits and, in 2019, it alone was responsible for 20% of pre-Brexit repatriations from the EU. One month after the successful legal action taken by Detention Action organisation, which led to the release of 350 people at the end of March, the government’s promises to continue with the releases seem to have slowed down. According to the same NGO, about one thousand people are still detained, in conditions of health risk and high stress.
The origins of the Spanish exception
While indeed for many European countries the detention of migrants is still business as usual and the appeals for closure of centres on behalf of civil society, the Council of Europe and the UN High Commissioner for Human Rights have received little attention, Spain managed to completely vacate its eight detention centres in the space of one month.
Underlying Madrid’s decision is “a peculiar context, in which for decades the civil society has been working with the government in order to create alternatives to detention”, explains Barbara Pilz, European coordinator of the International Detention Coalition, a platform of organisations dedicated to detention worldwide.
Nacho Hernandez, lawyer and legal adviser to the humanitarian organisation Fundación Cepaim, argues that the government’s decision is mainly driven by Spanish law, which limits detention to two months without extension, far below the 18-month threshold laid down in European regulations. ” By declaring a state of emergency on March 14th, it was clear that continuing detention was illegal, hence various civil society organizations pushed for total closure,” explains Hernandez.
Results became visible within only a few weeks and by mid-April the last three people detained in the Algeciras CIE were released. There were nearly 500 just a month earlier. “Priority was given to those who could prove to have accommodation in the municipality of residence, independently or through family members: the others were placed in reception facilities,” continues the lawyer. These include those operated by of Fundación Cepaim, which already runs integration programmes for asylum seekers and the homeless.
If the axe of deportation will remain hanging over the head of those who have been released, unless they can access the arraigo social, a system of regularization based on residence and a promise of employment – almost impossible to get with the restrictions caused by the pandemic – the Spanish example seems to be the opposite of the Italian one.
In fact,Yasmine Accardo states that “many of the detainees released from the Ponte Galeria centre in Rome or from Palazzo San Gervasio in Basilicata found themselves living rough on the streets and urged to obtain regularisation or leave the territory, which could not be complied with, primarily due to the closure of the relevant offices”.
Towards a greater surveillance, between borders and repatriations
Belgium and Germany have to some extent followed the Spanish example, reducing the number of detainees and closing some centres to subsequently place people in temporary reception facilities.
It is therefore a good opportunity for various protection organisations to press the accelerator on alternative measures to detention. However, Michael Flynn of the Global Detention Project warns against “the idea that alternatives are a panacea: in order to work, they need to be embedded in local realities and grounded in respect for human rights”.
According to the researcher, one risk is that alternative measures might also become attractive to the surveillance industry, “which already sells electronic ankle bracelets in the US for thousands of irregular migrants whose repatriation is pending”, thereby normalising the use of these systems for migration management.
Rex Osa, an activist with the German network Refugees4Refugees, on her part is concerned that the release of many migrants from detention centres in Germany is nothing more than “a temporary measure, within an increasingly repressive system”. Osa explains that the migrants released over the last month “have largely been transferred to the same asylum seekers’ centres they were living in before their detention and are required to remain there to access basic services: as soon as the emergency ends, it will be easy to track them down and resume repatriation”.
But there is one last change that is of some concern to Osa, as much as to other observers: the transformation of open reception centres from structures dedicated to asylum seekers and refugees into closed facilities, in the name of quarantine measures. “With this pretence, the army has already taken control of several structures in Germany and there is a risk that, once the emergency is over, it will remain be there: the coronavirus is being used to introduce new restrictions and controls, which can then become permanent,” says the activist.
The external borders of the Schengen area are the testing ground for these new quarantine measures which – in the opinion of Barbara Pilz of the International Detention Coalition – lead to de facto detention. “The idea that foreign people carry diseases is as old as the world and now we risk seeing it used to tighten border controls, blocking people in extremely vulnerable situations, where legal guarantees are minimal and civil society has little access,” says Pilz.
This risk in Europe is exposed by the containment being taken in hotspots and other facilities along the Greek-Turkish border, where thousands of people have been confined in semi-custodial situations since mid-March. Albeit with lower numbers than Greece, as of April 21st Italy had about 220 presences in the three hotspots operating in Lampedusa, Messina and Pozzallo, about 200 in a group of reception facilities reopened ad hoc in various Sicilian provinces to quarantine newly landed migrants and a further 149 in isolation on a ship anchored in the port of Palermo after being rescued by the NGOs Sea-Eye and Aita Mari.
Lucia Gennari, lawyer for the Associazione Studi Giuridici sull’Immigrazione (Association of Legal Studies on Immigration), says that “is not yet clear on which legal principles the restriction of freedom in these facilities is based, which does have a temporary value but in some cases has been extended beyond the 14 days established by decree”. For example, the detention in the Lampedusa hotspot has been extended constantly with the new arrivals, triggering what Mauro Palma, Guarantor for the rights of detainees, defined as “an endless process that is far from being acceptable”.
The Spanish decision to vacate the CIEs risks casting a shadow over the situation of some 1600 people stranded in the Centros de estancia temporal para inmigrantes (Temporary accommodation centres for immigrants) of the enclaves of Ceuta and Melilla, in Moroccan territory. In the opinion of Amnesty International they are to be released immediately.
If the pandemic has laid bare the fragility of the administrative detention of undocumented foreigners, offering new arguments to those who challenge it, Barbara Pilz points out that for civil society it will be essential to “work together to ensure less use of detention in post-coronavirus Europe”.
A scenario that the European Commission seems to dread, to the point that in a communication on asylum, relocations and repatriations of April 16, it was stressed that, “despite the temporary disruptions” caused by the emergency measures, “the repatriation process must be continued so as to be ready for the implementation of operations” as soon as possible.
Frontex, the EU agency for external border control, is referred to as the linchpin of such operations, in conjunction with national governments. If “all efforts have been made but repatriation cannot be enforced”, the Commission says, “national governments will have the discretion to grant residence permits to undocumented migrants”.
For some observers, this is a blow, and not even a subtle one, to the Spanish decision to vacate detention centres. But leaving speculation aside, the Commission aimed at confirming the ever-increasing centrality of repatriations to the European migration agenda, giving only a minor role to the regularisation possibilities, hesitantly examined by various national governments in order to provide manpower for vital sectors of the economy.
Yet for many governments, detention continues to be the main tool for tracing and repatriating unwelcome people, even when – as during a pandemic – this is not allowed.
Cover: the Ponte Galeria CPR in Roma. Photo via Twitter
