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Women in the Ponte Galeria immigration detention center near Rome, Italy May 6, 2017. © 2020 Reuters/Steve Scherer

(Brussels) – People in immigration detention in European countries pending deportation should be given alternatives to detention amid the COVID-19 pandemic, Human Rights Watch said today.

“While entire societies learn to live under lockdown, we shouldn’t forget about people locked up because they have the wrong papers,” said Judith Sunderland, associate Europe and Central Asia director at Human Rights Watch. “Authorities across Europe should take measures to protect the health and rights of detainees and staff in immigration detention centers, including by releasing people and finding alternatives to detention.”

The European Commission should work with relevant United Nations authorities to provide clear guidance on release, alternatives to detention, and how European Union member states can ensure adequate and safe shelter to people once released. The Council of Europe’s (CoE) Commissioner for Human Rights should monitor practices in CoE member states, which include all EU countries, and develop more detailed guidelines if needed.

Infectious diseases like COVID-19 pose a serious risk to populations in closed institutions such as immigration detention centers. These institutions have often been found to provide inadequate health care even under normal circumstances. In many detention centers, overcrowding, shared bathrooms, and poor hygiene make it virtually impossible to implement basic measures to prevent a COVID-19 outbreak.

As travel bans increasingly prevent forced returns and courts limit their activities, the reason that thousands of people across the EU and other European states may be held in detention – imminent deportation – is no longer justified. The EU Returns Directive allows detention pending deportation for up to 18 months, but stipulates that if “a reasonable prospect of removal no longer exists…detention ceases to be justified and the person concerned shall be released immediately.”

The Greek government has, since March 1, implemented a policy of detaining asylum seekers arriving at its borders and at the same time has suspended access to the asylum procedure.

Thousands are currently held in prisons and detention centers throughout Greece, with unknown standards of hygiene or protection. Since mid-March, the government has transferred at least 1,300 new arrivals from the islands into detention sites on the mainland.

According to testimonies gathered remotely by Human Rights Watch, people in detention sites in Malakassa and Serres are amassed in tents with little to no hygiene products. As of March 17, camps on the five Aegean islands have been on lockdown, trapping around 37,500 people in severely overcrowded centers where conditions of healthcare, shelter, and water and sanitation are abysmal.

The Italian government has adopted increasingly restrictive measures to protect the general public amid the worst outbreak of COVID-19 in Europe, including a measure to reduce overcrowding in criminal justice prisons. However, authorities have not yet adopted clear, transparent measures to address the situation of people detained because of their immigration status. An estimated 381 people are detained in immigration detention pending deportation even though most countries have banned flights from Italy. On March 12, the national defender of the rights of detained people called on the government to consider release; judges have issued individual release orders on the grounds that deportation was not possible.

On March 23, 130 Italian civil society organizations called on the government to apply alternatives to detention for everyone in immigration detention centers and so-called hotspots and for a progressive closure of the centers, citing the difficulty of protecting the health of detainees and staff.

France has not taken any nationwide measures to protect the health of approximately 340 people in immigration detention centers across the country. A number of detention centers stand empty because individual judges have ordered detainees released on health grounds and because they cannot be deported. Since their deportation orders are not rescinded, theoretically anyone released can be re-detained seven days later if they are still on French territory. France’s principal human rights authorities said recently that immigration detention is “today, a measure that poses great health risks while lacking in justification given the lack of possibility of expulsion.”

Some EU and neighboring countries have taken positive steps. On March 18, immigration authorities in Spain said they would start releasing people from detention following a case by case assessment, including the possibility of carrying out a deportation. Federal authorities in Belgium released an estimated 300 people on March 19 because detention conditions did not allow them to enforce safe social distancing measures. While Germany does not appear to have adopted a national policy, the federal interior minister has said there would be fewer deportations in the foreseeable future and several detention centers stand empty. Last week, authorities in the United Kingdom released some 300 people in response to a legal challenge brought by Detention Action and lawyers, who said that detention made the people they represent vulnerable to infection.

Under international human rights law, everyone, including people in custody, has the right to “the highest attainable standard of physical and mental health.” States have an obligation to ensure that medical care for those in their custody is at least equivalent to that available to the general population and must not limit equal access to preventive, curative, or palliative care. Measures to prevent the spread of diseases in confinement should be based on the best science available, be proportionate and limited in scope and duration, with every effort made to safeguard mental wellbeing of detainees.

In a statement of principles on the treatment of prisoners and detainees amid the COVID-19 crisis, the European Committee for the Prevention of Torture, a body of the CoE, asked authorities to use alternatives to detention “and refrain, to the maximum extent possible, from detaining migrants.” On March 25, its sister body, the UN Subcommittee on the Prevention of Torture urged all states to reduce populations in detention centers and refugee camps “to the lowest possible level.” The same day, UN High Commissioner for Human Rights Michelle Bachelet said governments should “work quickly to reduce the number of people in detention” to mitigate the risk of COVID-19 “rampaging through such…extremely vulnerable populations.” On March 26, Council of Europe Commissioner for Human Rights Dunja Mijatović echoed the call to release detainees from immigration detention to the extent possible.

The European Commission should develop guidelines for EU member states on protecting the health of people detained in immigration detention centers. These guidelines should include recommendations to member states to release individuals whose deportation within a reasonable time frame is no longer possible, and if necessary to prioritize those who may face a heightened risk if they contract the virus in detention, such as older people and people with disabilities. Guidelines should outline measures authorities should take to protect public health, including screening and imposition of quarantines, self-isolation requirements, or other measures for people released from immigration detention, as long as these measures are necessary and proportionate.

No one should be made homeless or otherwise destitute as a result of release from detention, Human Rights Watch said. PICUM, a network of organizations that defend the rights of undocumented migrants, recommends that states mobilize hotels, unused buildings, and sports halls if necessary to provide safe, adequate shelter that allows for social distancing.

“Everyone deserves the right to health and to protection from unnecessary suffering,” Sunderland said. “That’s why authorities need to be looking at alternatives to immigration detention right now.”

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