The Pact and Detention: An Empty Promise of ‘certainty, clarity and decent conditions’
06 Wednesday Jan 2021
By Galina Cornelisse, Associate Professor, EU Law and Public International Law, Vrije Universiteit Amsterdam
When presenting the new Pact on Migration and Asylum, the Commission wrote that its underlying rationale is the need for a new, durable European framework: ‘one that can provide certainty, clarity and decent conditions for the men, women and children arriving in the EU.’ Particularly when it comes to detention and accommodation at the borders of Europe, the last ten years have shown structural weaknesses in EU law and its implementation precisely with regard to ‘certainty, clarity and decent conditions.’ Thus, certainty and clarity are negated by the numerous instances of de facto detention that occur at the borders of Europe, or the vague legal framework governing the situation in the hotspots. And the conditions that prevail in some of Europe’s immigration detention centres, or in other places where people are either deprived of their liberty or where their freedom of movement is restricted, are a far cry from any possible interpretation of the term decency. Thus, proposals for new policies that aim to enhance certainty, clarity and decent conditions in this area are long overdue.
In this post I discuss those elements of the New Pact and its accompanying legislative and non-legislative initiatives that touch on detention and freedom of movement of third-country nationals. After setting out the content of the proposals in some detail, I investigate these through the lens of fundamental rights compliance. We will see that the Commission proposals do not sufficiently contemplate the implications of the link between border control and the liberty of individuals. The absence of a thorough and well-thought-out legal framework regulating detention and freedom of movement at the borders of Europe means that the promise of certainty, clarity and decent conditions can only be translated in practice if substantial changes to the proposed legislation are made.