Valeria Ilareva - Larc Summary

Immigration Detention under International and EC Law Proposer: Valeria Ilareva Proposer’s institution: University Institute “Ortega y Gasset” at the University Complutense of Madrid, Spain; Sofia University “Saint Kliment Ohridki”, Bulgaria Contact details: Spain, 28010-Madrid, c/General Alvarez de Castro, No17, bajo-dcha [email protected] Tel.: (+34) 660871618 Summary Worldwide increasing numbers of asylum seekers and immigrants are deprived of their liberty through the construct of administrative detention. This paper examines immigration detention according to international law (especially the European Convention on Human Rights) and the so called EU Return Directive. It draws from the experience of the author as a practicing lawyer providing legal aid to immigration detainees. At the beginning the paper contextualizes the research by giving a realistic definition and life to the terms used. Then it promotes a “two steps proportionality approach” in assessing the lawfulness of immigration detention. Should a state find it necessary to limit one’s right to liberty, it is obliged to give legitimate reasons for that. This is a fundamental requirement for considering proportionality. On the one hand, proportionality requires an objective justification of the imposition of the restrictive measure. The aim of dealing with undesirable immigration allows forced removal of those who do not leave voluntarily and therefore measures that facilitate deportation (such as detention) might also be permissible. However, this is not sufficient. Deprivation of liberty constitutes a drastic interference with the life of the affected person. Proportionality further requires an individualized assessment as to whether the actual interference is proportionate to achieving the legitimate aim. If that aim can be achieved by less invasive means or if the interference in the concrete case does not serve the advanced aim, detention is not justified. This two-steps proportionality test (general legitimate aims and individual assessment of the interference) is presented in the paper. The issue of time limit to detention is examined against the background of existing state practice. Furthermore the paper looks at two groups of rights to which persons deprived of their liberty are entitled: procedural safeguards and detention conditions. It analyses in more detail the right to be informed, the right to appeal the detention order, the right to access to a lawyer, the right to periodic review of detention and the right to compensation for damages. A special section is dedicated to vulnerable groups of persons and the right to respect for family life. The issues of detention conditions and discipline punishments are examined in relation to Article 3, ECHR. The approach chosen in this paper is one of constructive identification of good legal standards. By promoting knowledge of the existing safeguards the author encourages fulfilment of the state obligations in relation to immigration detention.