Between 1 and 2 October, aditus foundation’s staff participated to the European Legal Network on Asylum (ELENA) Advanced Course 2021: ‘Strengthening International Protection in Europe and Thinking Ahead’ training organised in Marseille by the European Council on Refugee and Exiles (ECRE).
The training was attended by legal practitioner and members of the ELENA network, which brings together a wide range of actors in the field of migration and asylum. It provided valuable input in key topics surrounding the current legal challenges in migration and asylum faced by legal practitioners all around Europe. Our interest was to focus on alternatives to detention as a key point for legal training.
On aditus’ side, the event was attended by Director Neil Falzon, Legal Officer Alexis Galand and Junior Legal Officer Mireille Boffa.
Specific workshops aimed at tailoring the comprehension of these key topics were held throughout the two days event. The workshops on alternatives to detention was of particular importance to aditus’ lawyers as they are confronted daily with the legal challenges surrounding detention.
What are alternatives to detention?
Alternatives to detention encompass all non-custodial measures respectful of the person’s fundamental rights. These measures can include the obligation to report to a police station, to reside at an assigned place, to deposit or surrender documents or to place a one-time guarantee or surety.
The expression ‘alternatives to detention’ should not lead to confusion: these measures are indeed alternatives forms of detention and can therefore only be applied when there are legal grounds for a detention.
International human rights law requires that alternatives to detention should always be considered before any decision to detain can be taken. Less coercive measures are indeed more respectful of human rights than actual detention as they achieve the same goals by respecting the fundamental right of liberty.
Detention is therefore to be used as a last resort and only if the objectives pursued by the authorities cannot be achieved with less coercive measures. In many cases, detention will be deemed too severe with regards to the aims pursued by the immigration authorities. It is especially true for vulnerable people such as minors or people suffering from a serious medical condition. The fact that detention is justified at a certain time does not mean that alternatives to detention cannot be applied later. Indeed, migration detention requires States to carry reviews of the necessity to detain at regular intervals.
The situation in Malta
Unfortunately, detention remains the norm and few people actually benefit from alternatives to detention. This despite the 2010 landmark judgement of the European Court of Human Rights in the case Louled Massoud v. Malta, where the Court found it “hard to conceive that in a small island like Malta, where escape by sea without endangering one’s life is unlikely and fleeing by air is subject to strict control, the authorities could not have had at their disposal measures other than the applicant’s protracted detention to secure an eventual removal in the absence of any immediate prospect of his expulsion.”
The need to focus on alternatives to detention was acknowledged by International bodies such as the Council of Europe. Following her visit to Malta between 11 and 16 October, Council of Europe Commissioner for Human Rights, Dunja Mijatović was “struck by the deplorable situation” in Safi and called on the authorities “to focus on investing in alternatives to detention and to ensure that no children or vulnerable persons are detained.”
aditus foundation has long been advocating against the automatic detention of asylum seekers and migrants and for the imposition of less coercive measures. According to our calculations, in 2021, the average duration of an individual’s detention inside Safi is 14 months with some people being detained for more than 2 years with no real assessment as to whether their detention is necessary or not.
“…hard to conceive that in a small island like Malta, where escape by sea without endangering one’s life is unlikely and fleeing by air is subject to strict control, the authorities could not have had at their disposal measures other than the applicant’s protracted detention to secure an eventual removal in the absence of any immediate prospect of his expulsion.”ECtHR, Louled Massoud v. Malta
Despite this, aditus’ lawyers have been able to secure the release under alternatives to detention for several individuals including presumed minors waiting on a final decision on their age assessment, LGBTIQ+ individuals pending the assessment of their asylum application or individuals that are detained on a removal order with no prospect of an actual removal.
Lessons learned from the workshop
The workshop aimed at strengthening the lawyer’s capacity to challenge detention regimes and ensure alternatives to detention are privileged over the automatic detention of asylum seekers and migrants. Practitioners were invited to exchange on the detention regime applied in their respective countries and their experience in challenging them.
Participants left with a strengthened knowledge of the legal framework and practice across Europe. This confirmed the work that had been done so far and gave further insight on what can more can be achieved in Malta to ensure compliance with human rights norms.
We would like to thanks the Erasmus+ programme and UNHCR Malta for supporting our participation at this training seminar.