Mandatory detention is the new reality for irregular migrants arriving on Europe’s shores. In the chaos following the EU-Turkey deal, there is an urgent need for alternatives.
One after another, the opened borders of south-east Europe have slammed shut. The exhilarating, hellish utopia of the West Balkans route seems an increasingly implausible memory. The replacement, following the EU – Turkey Agreement of 18 March, looks a lot like the more straightforward Hell of mandatory detention.
Since the deal came into force on the 20th March, everyone arriving on the Greek islands has been taken straight to detention. The EU’s much-vaunted ‘hotspots’ have become vast detention centres. Around 4,200 people are held in Moria on Lesvos and the Vial centre on Chios, which has seen disturbances and a mass break-out. It is rumoured that people were not initially informed why they were being detained for several days after the deal, which would almost certainly be unlawful under EU law. Neither has there apparently been any individualised assessment of the need and appropriateness of detention, also required by EU law. Disabled people, pregrant women, torture survivors, young children, all are detained.
In the short-term, the political calculus is clear. Panicking EU leaders are desperate to ‘break the business model of the smugglers’ and convince people that, even if they survive the risk of death in the Aegean, they will not be allowed to stay in Europe. The message is pure deterrence: forgotten, last summer’s wave of public sympathy for refugees.
In the longer term (and in this context, anything past next week counts as longer term), the picture is more confused. There has been much discussion of whether the EU – Turkey deal will hold: even leaving aside the intractables of stopping irregular migration in the Aegean, the dim prospects of either Turkey meeting the conditions for visa liberalisation, or the EU delivering if it does, are likely to sink the deal by June. Hence a tendency to wait and see what happens in the next round of crisis.
For those of us concerned with refugees’ and migrants’ rights, not to mention the basic values of the EU, this would be a mistake. Facts are taking shape on the ground which will inevitably form the framework of the future approach, within or without the current deal. Not least, the fact of detention.
Grappling with this problem requires the setting aside of two key illusions. Firstly, and painfully for many of us, the West Balkan route is unlikely to reopen. Now that the Macedonian border has slammed shut to refugees, the politics of reopening it (and then the Serbian border, and the Croatian border, and the Austrian border) will not be contemplated by nervy leaders. It is vital that the human and ethical cost of closing the border be highlighted and opposed; but equally vital that we think about what next in face of the reality of its closure.
Secondly, the EU’s guiding illusion in the deal, or at least the rhetoric of the deal: ‘Returning all new irregular migrants crossing from Turkey’. This illusion, introduced as the heading of the first of the deal’s six principles, actually lasts only for two and a half paragraphs of the text, which recognises that there is ‘no question’ of a ‘blanket’ return policy, as this would of course breach the European Convention on Human Rights. This introduces the awkward proposition of an individualised assessment process leading in all cases to return, which of course will not happen. Not least, the battered but still extant Dublin Regulation will entitle many to join close family members in other EU countries. And the question of adequate reception facilities in Turkey for the 40% of arrivals who are children, or the many others with serious vulnerability factors.
Further, despite the EU’s haste in detaining everyone, it is far from clear when returns of asylum-seekers to Turkey can begin. This week’s much-trumpeted first boatload of returns apparently only contained people who hadn’t claimed asylum who were being returned to Turkey even before the deal. The detention centres are in place, but there is no sign of the massed army of judges and interpreters required for the vision of a fast-track asylum process on the Greek islands. Much less the lawyers, essential if such a process is to have any credibility.
Indeed, the whole sorry saga has a familiar ring to British ears. In 2000, it was the UK that was facing an unprecedented influx of asylum-seekers, trivial as the numbers now appear in retrospect. It was the UK that pioneered the use of detained accelerated asylum procedures as a response to this perceived crisis. The European Court of Human Rights, in a challenge to the UK practice, upheld the principle of detaining asylum-seekers for administrative convenience. Long after the numbers of applicants had shrunk, the Detained Fast Track continued to process around 20% of asylum claims in detention, to brutally short deadlines.
The long-term difficulties of operating such a system lawfully have since become clear. Over the last two years, following legal challenges brought by my organisation Detention Action, the British courts have found three separate aspects of the Fast Track to be so unfair as to be unlawful. Last November, the Supreme Court refused the government permission to appeal against the finding that the legal framework of the Fast Track appeals process was ‘systemically unfair’. The government was forced to suspend the system in July 2015. There is a lesson here for an EU minded to rush into mass detention as a quick fix to a complex situation.
The awkward reality, for all concerned, is that many people will be in Greece for an unknown but substantial period. Neither migrants’ dreams of the reopening of the West Balkans route, nor EU aspirations of mass returns to Turkey from detention, are likely to bear fruit. We need to think about Greece.
Elizabeth Collett of the Migration Policy Institute has pointed to the possibility of a ‘collaborative, EU-led fast-track assessment system that can operate at the European Union’s external borders’. Regardless of the fate of the deal, some kind of accelerated asylum process on the islands appears inevitable.
The key questions are whether it will respect the fundamental right to asylum, and whether it will be in detention. The fate of the UK’s Detained Fast Track suggests that the two questions are interlinked: the fact of detention, and the need for oppressive speed that it brings, make it exceptionally difficult to process fairly all but the most manifestly unfounded asylum claims in detention.
However, it is by no means clear that accelerated asylum procedures require detention. As a new briefing paper by Detention Action sets out, the great majority of such processes in the EU are conducted in the community. Last year I visited one such process in Zurich, Switzerland – a very different context to Greek islands, but with many similarities in political context and challenges. In contrast to the legal quagmire in the UK, the Swiss system is welcomed by a wide range of observers, not least many of the asylum-seekers going through it.
Indeed, despite the current practice of automatic detention, the text of the Commission document appears to recognise that detention is only required ‘for individuals who present a risk of absconding’. The Commission’s ‘fact-sheet’ appears to go well beyond the text by stating baldly (and, for the moment, inaccurately) that ‘asylum seekers will be accommodated in open reception centres on the Greek islands’, reflecting the confused and improvised nature of the deal and its implementation. It is true however that it is hard to see much of an absconding risk for asylum-seekers on a Greek island – where would they abscond to? The only route for them to the Greek mainland, asylum, family reunification or any other likely aspiration would require cooperation with the authorities. In fact, extensive research has found that asylum-seekers are generally predisposed to comply, at least while their cases are being considered.
So the current detention practice may arise from a mixture of deterrence posturing, lack of open reception capacity, and the fact that no-one really knows what is supposed to be happening. This level of advanced confusion, seemingly up to the highest levels, presents an opportunity to set out what a fair reception system in Greece could look like.
This requires a further disillusioned assessment of Greece now. Its reception facilities are altogether inadequate to cope with the prospect of all new arrivals being stuck in the country. Three weeks ago I saw the conditions in one of the improvised reception facilities, on the docks at Piraeus: a small passenger terminal set aside for migrants, with no visible adaptation or official presence of any kind. Every inch of the floor was covered with blankets and piles of belongings; in mid-morning, prone bodies still huddled under blankets, testament to a generalised insomnia and depression.
However, that was not all. Equally striking was the resilience and self-organisation of the people there. Children played on the forecourt. The single room of the terminal building appeared to have been set aside for families and women, with single men sleeping in tents outside.
Most importantly, and despite the absence of any apparent government presence, there was a constant hubbub at the entrance. As we arrived, a Greek family were unloading the boot of their car, teenaged daughters and asylum-seekers together bringing crates of food into the building. They were immediately followed by a truck from the Athens central market, filled with oranges. An orderly queue formed; soon everyone had a bag of oranges and bottled water.
This, in a country facing economic meltdown.
These are not isolated anecdotes. Despite the economic situation, Greece retains a strong tradition of community self-help and support. Greeks are used to dysfunctional government; they get by nonetheless. Responses to the crisis need to rely on these community strengths.
Glimpses of a possible way forward are not hard to find. Solidarity Now run community centres that tackle the crisis facing people in Greece, both Greeks and migrants. They have set up a hosting scheme through which 700 Greek households take asylum-seekers into their homes. The asylum-seekers receive supermarket vouchers from UNHCR; hosts receive a small allowance towards their expenses. Despite the lack of significant financial incentives, despite the general economic crisis, there are plenty of willing hosts.
The Society for the Care of Minors run supported housing for young unaccompanied refugees, encouraging them to engage with the immigration system and seek to be reunited with family members elsewhere through the Dublin Regulation rather than through smugglers. When I visited their centre in Athens, the street outside was packed: the whole local community seemed to have turned out for the centre’s street party. The cheerful teenagers were largely in charge – each vat of (excellent) food had a different label crediting the young chefs responsible.
Nor are such projects limited to the mainland. METAdrasi are running a small reception centre on Lesvos for unaccompanied children under the age of fifteen. The aim has been to spare them the trauma of the previous registration and transfer process. How much more crucial that such young children are not thrown into mandatory detention with adults.
(Incidentally, perhaps the best way of showing solidarity with refugees in Greece is to donate to excellent Greek civil society organisations such as these – links are above.)
Such projects can form the basis of an alternate route for the EU, one not based on massive detention centres, with or without massive open reception centres alongside. Such an approach makes sense for Greece, which would benefit little from EU crisis money going into building isolated reception centres, saddling the government with the long-term running costs. It would make migrants one more burden on a society at breaking point, an easy target for far right agitation.
Instead, EU funds could go directly to families and communities suffering with the economic crisis. Families surviving on food banks can rent spare rooms to refugees. Unoccupied and unrentable properties can be converted to small reception centres at the heart of communities. Migrants and locals could live alongside each other, help each other with a shared crisis.
In time, many will have to be resettled in other European countries. Others will have to be allowed to join close family members in other countries. But some will remain in Greece. Living in communities, they will be more able to learn Greek, make contacts, start small businesses.
The challenge is of course formidable. There are over 51,000 migrants stuck in Greece. A few small scale community projects cannot immediately meet the scale of the reception challenge facing Greece. Time, to develop and build on good practice, is what Greece and its migrants today do not have.
The alternative, however, is appalling. Two weeks on from the deal, conditions at the hotspots are worsening fast, with shortages of food and sanitation, rioting and stabbings. And still the boats come. Detention, as a solution, would have to be detention on a scale hitherto unimaginable in the EU.
The EU must not leave Greece to solve a migration crisis on top of an economic crisis. Instead, migrants must be part of the solution for Greece.
Thanks to Eiri Ohtani of International Detention Coalition, whose forthcoming briefing paper develops many of these arguments.