PART I

Guest post by Izabella Majcher. Izabella is a researcher in international human rights and refugee law, with expertise in EU immigration and asylum policy. She is a researcher at the Global Detention Project and a volunteer visitor to immigration detainees with the Ligue Suisse des Droits de l’Homme. She holds a PhD in international law from the Graduate Institute of International and Development Studies (IHEID) in Geneva. This is the first post of Border Criminologies' themed series 'Hotspots and Plethora of Freedom-Restricting Measures', organised by Izabella. 

In its May 2015 European Agenda on Migration, the European Commission rolled out the ‘hotspot approach’ to manage the so-called refugee crisis and assist frontline member states facing disproportionate migratory pressure at their external borders. Under the hotspot approach, European Union (EU) agencies (European Asylum Support Office (EASO), European Border and Coast Guard Agency (EBCG, Frontex), and Europol) work on the ground with Greece and Italy to identify, register, and fingerprint incoming migrants and asylum seekers. This unprecedented operational and financial support is meant to ensure that all people upon arrival are registered and channelled to one of the following procedures: asylum, return, or relocation. Until now, ten hotspots have been set up in total in these two countries.

Otávio Roth, Universal Declaration of Human Rights, 1978
Various aspects of the operation of hotspots have been disapproved by the UN bodies (see here, here, and here), civil society organizations (see here, here, here, and here), and scholars (see here, here, and here). Their criticism is mostly focused on unclear division of roles and responsibilities between EU agencies and host member states, a lack of transparency, substandard material conditions, impeded access to the territory and asylum system, or differential treatment based on nationality. This blog post, divided in three instalments, addresses the hotspot approach from the perspective of the right to liberty and freedom of movement. In the official discourse, the hotspots are referred to as identification, registration, or reception centres. How should measures carried out in these facilities be construed under international human rights law? The blog post investigates whether these measures comply with the lawful restrictions on freedom of movement and whether some of them may in fact amount to de facto detention.

International human rights framework governing measures of confinement

Which human rights framework should apply to the operation of hotspots? Under international human rights law, measures of confinement fall within the ambit of restriction on freedom of movement or deprivation of liberty. Both measures are strictly regulated under international human rights instruments.

By virtue of art.5 of the European Convention on Human Rights (ECHR), art.9 of the International Covenant on Civil and Political Rights (ICCPR), and art.6 of the Charter of Fundamental Rights of the European Union, everyone has the right to liberty of person. This right is not absolute but, because of its fundamental nature, international law imposes several obligations on states if they detain a person. First and foremost, immigration detention should be lawful. To this end, it should be imposed on grounds and in accordance with a procedure prescribed by domestic law. In addition, domestic provisions regulating detention should be clear and foreseeable in their application. In line with the principles of necessity and proportionality, immigration detention should be imposed only as a last resort when there are no available non-custodial alternatives to detention. Detainees should also be afforded procedural safeguards, including information about the reasons for their detention and access to judicial review, and adequate conditions of detention.

Freedom of movement is guaranteed under art.2 of Prot. 4 to the ECHR, art.12 of the ICCPR, and art.26 of the Geneva Refugee Convention. Pursuant to these provisions, everyone lawfully within the territory of a state has the right to liberty of movement within that territory. According to the General Comment No.27 (GC No.27) of the Human Rights Committee (HRC), while the question of lawful presence is governed by domestic law, which may place conditions on the entry to its territory, these conditions should comply with the state’s international obligations. In 2016, more than half of people who crossed the Mediterranean came from the top countries of origin for refugees worldwide and over three-quarters of these people were of nationalities who received in total 84 percent of first instance positive decisions on their asylum claims across the EU in that year. Most people placed in the Italian and Greek hotspots should be thus considered prima facie in need of international protection and, consequently, lawfully present in the territory of these countries for purposes of the right to freedom of movement. Beyond the refugee protection, according to Celepli v. Sweden before the HRC, if an expulsion order is not enforced because of the risk of ill-treatment upon return, the person’s stay in the host country continues to be lawful. In the same way as the right to liberty, the right to freedom of movement is not absolute and international law allows states to exceptionally impose restrictions on its exercise. In order to be permissible, such restrictions must conform to three requirements: they must be provided by law; serve one of the listed legitimate purposes, such as the protection of national security, public safety, public order, health or morals, the rights and freedoms of others, or the prevention of crime; and be necessary for achieving this legitimate objective.

Domestic labelling of measures as reception or accommodation and qualifying facilities as, for instance, “temporary stay facility for foreigners,” “migratory station,” or “specialized home for temporary accommodation” are not decisive for the assessment of the measure under international law. Likewise, the new EU euphemism of “hotspots” does not place these centres outside the purview of relevant international and regional human rights protection norms. Rather, the European Court of Human Rights (ECtHR) analyses the factual situation of the individual concerned to determine whether the measure falls within the scope of the right to freedom of movement or the right to liberty. In line with the Strasbourg jurisprudence, there is no clear line between restriction on and deprivation of liberty. The difference lies in degree or intensity of the measure, rather than its nature or substance. When determining whether restriction on liberty amounts to deprivation of liberty, the ECtHR assesses specific facts of the case and takes into account a whole range of criteria, such as the type of measure, its duration, effects, and manner of implementation (Austin and others v. the UK). When applied in a cumulative manner, a series of restrictions, which in themselves would not cross the threshold of deprivation of liberty, may well amount to detention.

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How to cite this blog post (Harvard style)

Majcher, I. (2018) The EU Hotspot Approach: Blurred Lines between Restriction on and Deprivation of Liberty (PART I). Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2018/04/eu-hotspot (Accessed [date]).