CURRENT PRACTICE – ADDRESSING ABUSIVE USE OF IMMIGRATION DETENTION
Without any prospect of removal/deportation, the administrative detention of migrants solely on the grounds
of immigration status cannot be justified.19 Under international human rights law, immigration detention can
only be lawful so long as returns/deportations are feasible and can indeed take place. In the present situation,
this prospect is clearly absent. Public health cannot be used as a pretext to detain migrants without a valid
legal basis. The Council of Europe Commissioner for Human Rights has called on member states to “review
the situation of rejected asylum seekers and irregular migrants in immigration detention, and to release them
to the maximum extent possible”.20
In France, for example, the NPM had recommended the temporary closure of administrative detention centres
in light of the sanitary situation and the absence of deportation prospects.21 In Spain, the ombuds institution
called for the government to release those detained in immigration detention centres, putting forward similar
arguments.22 In the United Kingdom, Detention Action, a civil society organization (CSO) primarily working on
issues of migration detention, challenged the legality of the administrative detention of migrants. While the
court eventually ruled in favour of the government, this litigation contributed to positive measures to reduce
the number of people detained and a review of all migration detentions.23
19 For specific guidance on migration detention, see for example: the UN Inter-Agency Standing Committee, Interim Guidance –
COVID-19 Focus on Persons Deprived of Liberty (hereafter IASC, Interim Guidance), p. 3; and the European Union Agency
for Fundamental Rights and Council of Europe, ‘Fundamental rights of refugees, asylum applicants and migrants at the
European borders’ 2020. For further reading, see PICUM, COVID-19 Statement, March 2020; IOM – UNHCR – OHCHR – Joint
Statement, 31 March 2020; Amnesty International, ‘Americas: release migrants and asylum-seekers from detention during
covid-19 pandemic‘; Human Rights Watch, ‘Europe: Curb Immigration Detention Amid Pandemic‘, 27 March 2020.
20 Council of Europe Commissioner for Human Rights, ‘Commissioner calls for release of immigration detainees while
Covid-19 crisis continues’, 26 March 2020.
21 CGLPL, ‘COVID-19 : le CGLPL s’est rendu dans les centres de rétention administrative de Paris-Vincennes et du
Mesnil-Amelot,[‘The NPM visits administrative detention centers of Paris-Vincennes and Mesnil-Amelot’],
17 April 2020.
22 See El Diario, ‘El Defensor del Pueblo pide al Gobierno liberar a los inmigrantes de los CIE ante su imposible deportación por el coronavirus’, [The Ombudsman calls on the government to release immigrants in detention in light of the
impossiblility of deportations during the coronavirus], 19 March 2020.
23 See Detention Action, ‘Over 350 Released From Immigration Detention And All Cases To Be Urgently Reviewed’,
26 March 2020.
8