port are likely to be placed in refugee accommodation at a closed facility at the
airport and automatically placed in the accelerated asylum procedure.132 Therefore, they are often not identified as being traumatised, nor given sufficient time
to present their case clearly. This places them at a higher risk of being returned
to their home country without a proper and rigorous examination of the asylum
application. The report further noted that there is a risk that failed asylum-seekers who have suffered torture or trauma might be detained pending deportation
when there has been a failure to identify them as a VoT during the earlier stages
of the asylum process.
The policies highlighted above are failing to fulfil their key objectives: (i) to identify vulnerable asylum-seekers, including VoTs within detention facilities; (ii) to ensure that detention does not have
a debilitating effect on the individual’s health; and (iii) to immediately remove the individual from
detention if their health is being negatively impacted.
The IRCT considers that these examples of policies that fail to protect vulnerable persons where safeguards are most needed strengthens the argument for the complete abolition of the detention of
vulnerable persons. As many VoTs may have experienced torture in a detention environment in their
home country, being detained during the asylum process is highly likely to retraumatise the victim,
which has a severe and long-term impact on the victim’s physical and mental health.
Detention
provisions
in the recast
Reception
Conditions
Directive
(RCD)
In the EU, the recast RCD lays down provisions for the detention of vulnerable
persons, including VoTs, on the basis that: “The health, including mental health,
of applicants in detention who are vulnerable persons shall be of primary concern
to national authorities. Where vulnerable persons are detained, Member States
shall ensure regular monitoring and adequate support taking into account their
particular situation, including health.”133 There are a number of concerns with this
provision (Article 11):
• The wording of “primary concern” and “adequate support” are too vague
and allow Member States to interpret this provision widely.
• The obligation to “ensure regular monitoring” does not indicate a specific
time-frame, leaving room for interpretation.
• There is no requirement for a full medical evaluation to be carried out by a
qualified expert.134
• There is no exception made for detaining unaccompanied minors. This is
of particular concern given that their age and the fact they have travelled
alone makes it likely that they are highly traumatised even before entering
the asylum process.
• Member States may derogate from some obligations in Article 11 when detention takes place at a border post or in a transit zone if “duly justified”.135
There is a concern that this leaves a wide margin of interpretation open to
Member States to decide when to derogate, thereby undermining the protection of vulnerable persons in border and transit zones.
Have safeguards improved in the new provisions to the EU asylum directives?
The IRCT is extremely concerned that the recast RCD does little to improve the obligations on Member
States to conduct full medical evaluations of vulnerable persons in detention, in order to assess
whether the detention is negatively impacting on the individual’s health. This is particularly regrettable given the likelihood that detention will trigger re-traumatisation for VoTs.
Recognising victims of torture in national asylum procedures / 65
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