On 16 December 2015, Nicolas Schmit, the Minister responsible for relations with the European Parliament, spoke on behalf of the Council before MEPs meeting in plenary session for a debate on the detention and use of force with regard to asylum seekers. It is a topic of concern given the fact that the Council has repeatedly qualified detention as a measure of last resort in the context of the refugee crisis, in particular with regard to the return policy.
Nicolas Schmit explained that detention measures may only be taken in exceptional circumstances and must be non-arbitrary, since a migrant is entitled, like any other person, to the right to liberty on the basis of international and European law. Detention is justified only on a number of specific grounds in limited circumstances set out in the two directives: the Return Directive (2008/115/EC) and the Directive laying down standards for the reception of applicants for international protection (2013/33/EU).
According to Article 8 of Directive 2013/33/EU, a person shall not be held in detention for the sole reason that he or she is an applicant for international protection, stated Nicolas Schmit. An applicant for international protection may, however, be detained 'when it proves necessary and on the basis of an individual assessment of each case' and 'if other less coercive alternative measures cannot be applied effectively'.
According to Article 15(1) of the Return Directive which sets out the rules for detention for the purpose of removal, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process. Member States may have recourse to detention only after other sufficient but less coercive measures have been applied. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence.
Pursuant to their obligations under international and EU law, Member States must guarantee the human rights of refugees and migrants, including the obligations set out in these directives, emphasised Nicolas Schmit.
In order to improve the efficiency of the EU's return policy, the Council has stated on numerous occasions over the past few months that detention is a measure of last resort, if other measures cannot be applied, stated the Minister.
In particular, Nicolas Schmit referred to the conclusions of the extraordinary Justice and Home Affairs (JHA) Council of 9 November 2015, according to which 'Member States, to overcome the potential lack of cooperation of migrants as they arrive into the European Union, will make use of possibilities provided by the EU acquis'. The conclusions authorise 'coercive measures, including, as a last resort, detention for a maximum period necessary for the completion of underlying procedures'. However, this is possible only if authorities fully respect the fundamental rights and the principle of non-refoulement, stated the Minister, citing the conclusions.
The Member States also agreed that detention measures under the Return Directive should be applied 'urgently and effectively' when 'voluntary return is not practicable and other measures provided for in Directive 2008/115/EC are not adequate to prevent secondary movements, as set out in the Decision of the extraordinary JHA Council of 22 September 2015 on the relocation of 120,000 persons from Italy and Greece. 'In that context, I would like to point out that migrants do not have a choice of place of protection and that their full cooperation is required to facilitate their relocation', insisted Nicolas Schmit.
As far as using force to obtain digital fingerprints is concerned, the Minister referred to the Checklist published by the European Union Agency for Fundamental Rights on 22 October 2015.
Dimitris Avramopoulos, the European Commissioner for Migration, Home Affairs and Citizenship, also stated that detention is only a last resort after all the alternatives have been duly considered, for example if there is a risk of absconding and recourse to detention would be 'necessary and appropriate' and if the conditions of detention have full respect for human dignity, he insisted. The right to liberty and security, as well as the right to asylum, are fundamental human rights, confirmed the Commissioner. The European Commission closely monitors respect of fundamental rights in the Member States, assured Dimitris Avramopoulos, stating that the Directive laying down standards for the reception of applicants for international protection was not transposed by all the Member States until July 2015. As a result of that directive, the EU acquis contains clear rules on the detention of asylum seekers, he stated. He called for efforts to be strengthened to ensure the registration of migrants, which he believes is a 'precondition' to managing the flow of migrants.
The debate
The debate which followed the statements made by the Council and the Commission demonstrated that the major political groups were very concerned.
Monika Hohlmeier (EPP) considered that in certain countries, the fundamental rights of asylum seekers are not sufficiently respected, irrespective of whether they are refugees fleeing war or so-called economic refugees. She denounced the fact that refugees are not given food, drinks or medical care from the authorities in countries such as Greece, Hungary and Slovakia. Despite the criticism levelled at some asylum seekers, the fundamental rights of these people must be respected. She requested that, at the point of registration, they be duly informed of their rights. Monika Hohlmeier acknowledged that asylum seekers are often afraid to register as a result of rumours spread by human traffickers. In this context, she also observed that many children have disappeared, raising the risk of exploitation by one of the worst forms of organised crime.
Enrique Guerrero Salom (S&D) considered that if all the Member States were to respect fundamental freedoms and if detention measures were only taken in exceptional circumstances and on the basis of an individual assessment of each case, 'this would be a moot point'. If EU Member States have recourse to aggressive policing methods against refugees, he believes that it is to convince them not to go where they will be mistreated. The MEP admitted that the Dublin II Regulation no longer works properly and that new rules are needed. 'But humanitarian principles cannot be thrown out the window, especially with regard to those fleeing war'. However, in some Member States, these principles are far from being respected.
For Timothy Kirkhope (ECR), it is crucial that existing rules are respected. 'The bigger the challenge, the more the rules should be respected', he stated, considering that some Member States fail to respect them. He criticised the Commission which he believes 'should have done more to tackle this problem'. Acknowledging that it is difficult to find sufficient resources to tackle the current scale of migration, he called for human values and the law 'to which we are all subject' to be respected anyway.
Cecilia Wikström (ALDE) observed that the debate on the issue of detention 'is becoming increasingly surreal'. She referred to an interview given by Donald Tusk, President of the European Council, on 2 December 2015 to six European daily newspapers in which he suggested that migrants and refugees be detained for 18 months, in so far as it takes that long to screen them. The MEP believes that this is contrary to EU law. She takes the view that this would be equivalent to detaining women, children and the elderly in camps for a year and a half which calls to mind 'periods of European history that we'd rather forget'. The liberal MEP also denounced the incorrect reference made to 'economic' asylum seekers, stressing that a person cannot be denied entry into a country to apply for asylum. She strongly denounced 'the rampant nationalism which has crept in during the course of the debate' and which is fuelled by increasingly nationalist and populist governments. 'Countries which have thus far done nothing and which have failed to contribute to the reception effort, should start to do so', she concluded.
Josu Juaristi Abaunz (GUE/NGL) denounced the abuse hurled at refugees at borders in south east Europe, referring to the practice of beatings, extortion and other crimes and cases of corruption. Judith Sargentini (Greens) also denounced the 'worrying' words of Donald Tusk, who she believes regards refugees as a threat to security. She drew attention to the dissenting voices extending beyond the conservative ranks denouncing 'an intolerable stigma'.
In reply to MEPs, Nicolas Schmit, who declined 'to interpret the words' of Donald Tusk, referred to the invitation letter sent by the President prior to the European Council of 17 and 18 December 2015: 'The protection of our external borders is not intended to scare off those who are fleeing war or persecution. Europe is a community of freedom and will always provide shelter for those in danger'. Nicolas Schmit also stressed the fact that detention measures must not be the norm and that in cases of abuse and failure to comply with European and international rules, measures should be taken since 'human dignity must be respected and protected' and 'cannot be violated with impunity'.