A/HRC/23/46
support, and prison-like conditions. In Tunisia, Turkey and Greece, he also witnessed the
detention of children and families, and the lack of a proper system of guardianship for
children. In all countries visited, he observed the detention of persons without prospect of
removal, and a quasi-total absence of meaningful alternatives to detention mechanisms.
53.
In addition, he observed inconsistencies in the abilities of irregular migrants’ access
to asylum procedures whilst in detention. The Special Rapporteur welcomes the recast
Reception Conditions Directive for including an exhaustive list of restrictive grounds for
the detention of asylum seekers. He notes, however, that the broadly phrased provisions
may in fact allow for the increased detention of asylum seekers , which must be avoided.
54.
Another recurring problem encountered was that of situations of prolonged detention
due to non-removability. It should be noted that the European Court of Justice has clarified
that in the European Union an irregular migrant cannot be detained for the sole reason that
he or she is irregularly staying in the country, even if he or she has not followed an order to
leave the country.20 Detention in the absence of deportation proceedings was thus found to
be contrary to the aim of the European Union Return Directive. Despite this important
affirmation by the Court clearly specifying how these provisions should be interpreted, the
Special Rapporteur regularly witnessed the detention, for prolonged periods, of persons
who had no real prospect of removal. This was certainly the case in Greece and Italy , and to
a lesser extent and for shorter periods of time in Tunisia and Turkey.
5.
Externalization trend
55.
The Special Rapporteur further observed that, through a range of sophisticated
policies and programmes, European Union policy also increasingly operates to ensure that
border control no longer takes place at the physical borders of the European Union.
Achieved through a variety of means, the phenomenon, which has been termed
“externalization” of border control, involves shifting the responsibility of preventing
irregular migration into Europe to countries of departure or transit.
56.
While “push-backs” have been condemned by the European Court of Human Rights
in the Hirsi Case,21 the Special Rapporteur notes that the European Union appears to be
finding more creative ways to ensure that migrants never reach Europe’s borders. While
increased surveillance may assist in the saving of lives, it is thus feared that
institutionalized cooperation with third countries, especially in North Africa and along the
Turkish coast, in particular with regard to supporting their coastguards’ interception
capacities, has the practical objective of simply stopping boats from entering European
territory altogether.
57.
Moreover, a network of European Union member States’ Immigration Liaison
Officers has been set up to enable representatives of European Union member States to
establish and maintain contact with the authorities of the host country with a view to
contributing to the prevention and combating of “illegal” immigration.
58.
The European Union thus appears to be attempting to ensure that foreign nationals
never in fact reach European Union territory, or, if they do so, are immediately returned.
This is particularly troubling as it means that the responsibility for migration control is
shifted to countries outside the European Union and that, consequently, the recourse of
those migrants to human rights mechanisms within the European Union becomes legally
restricted or practically impossible. Moreover, the externalization process seems to aim at
20
21
14
Case C-61/11 PPU, El Dridi, 28 April 2011, OJ C 186, 25.06.2011; Case C-357/09 PPU, Kadzoev,
Judgment of the Court (Grand Chamber) of 30 November 2009.
European Court of Human Rights, Hirsi Jamaa and Others v. Italy, 23 February 2012.