WRITTEN QUESTION E-1308/02

by Kathalijne Buitenweg (Verts/ALE) to the Commission

(7 May 2002)

Subject: Minimum standards on detention conditions of illegal immigrants and asylum seekers

The detention regime in the European Union goes far beyond those in custody who are charged with criminal offences. Migrants in violation of immigration or foreigner's laws and persons seeking asylum now comprise a significant percentage of detainees in many EU countries. Their procedural rights are routinely violated and the conditions of their detention are often woefully and even dangerously substandard, as illustrated in a recent report published by Human Rights Watch. The discussion document of the European Commission on minimum procedural safeguards appears to apply only to criminal suspects and avoids any mention of immigration detainees or asylum seekers, despite the fact that most of the procedural rights that devolve upon criminal detainees also apply to migrants and asylum seekers in detention, regardless of their legal status.

The ECHR has ruled that Article 5(4) procedural guarantees applies to immigration detainees and asylum seekers and the United Nations Human Rights Committee has reached similar conclusions concerning ICCPR Article 9, both documents being listed in the Appendix of relevant human rights instruments in the discussion paper of the European Commission on minimum safeguards in criminal proceedings.

Is the Commission of the opinion that the discussion paper on minimum procedural guarantees applies to all detained persons?

Or is the Commission willing to issue a separate proposal for guidelines for Member States addressing the minimum procedural safeguards of non-criminal detainees (immigration detainees and asylum seekers)?

Answer given by Mr Vitorino on behalf of the Commission

(10 June 2002)

Owing to the different legal bases underlying asylum and immigration and judicial cooperation in criminal matters, the Commission is obliged to cover the issue of procedural guarantees relating to the detention of suspects/defendants in criminal proceedings and asylum seekers/illegal residents and immigration detainees in different instruments.

The purpose of the Consultation Paper on procedural safeguards for suspects and defendants in criminal proceedings was to launch a Europe-wide reflection on the areas where common standards should apply in the treatment of suspects and defendants in criminal proceedings throughout the Union. It is meant to help the Commission prepare a Green Paper later this year. The Consultation Paper touches upon the issue of detention but is limited in scope to procedural safeguards for suspects and defendants in criminal proceedings. It does cover immigration and customs officers where they suspect an asylum seeker of having committed a criminal offence.

In the area of asylum, the Commission brought forward a proposal on minimum standards on procedures in Member States for granting and withdrawing refugee status in September 2000(1) which inter alia set a framework for assessing the legitimacy of cases of detention and obliged Member States to introduce an initial review and subsequent regular reviews. The Commission is currently preparing an amended proposal, taking into account the opinion of the Parliament and the Conclusions adopted by the Justice and Home Affairs (JHA) Council at its meeting on 7 December 2001. It is expected that the amended proposal will include a modified provision on detention.

In June 2002 the Council should formally adopt a Directive on the reception of asylum seekers which include some specific provision in relation to the reception of asylum seekers who are detained while the exam of their application is still pending. According to Article 13 of this Directive Member States will have to ensure the same quality of the reception normally granted to asylum seekers also in the specific situation of persons who are in detention. In addition this Directive ensures that legal advisors or counsellors of applicants for asylum and representatives of the United Nations High Commissioner for Refugees as well as the relevant non-governmental organisations (NGOs) will be granted access to the housing facilities (which include detention centres) in order to assist the applicants.

As regards detention pending removal of rejected applicants for asylum or illegal residents, the Commission's Green Paper on a Community return policy on illegal residents(2) invites all interested parties to comment on precisely the question asked by the Honourable Member: should binding standards on detention be established for these cases? If so, should this include legal preconditions, accommodation standards and time limits to limit the maximum duration of detention?

(1) OJ C 193, 10.7.2001.

(2) COM(2002) 175 final.