Centres for Third Country Nationals

Directorate-General Internal Policies

Policy Department C

Citizens Rights and Constitutional Affairs

CENTRES FOR THIRD COUNTRY NATIONALS

BRIEFING PAPER

The term ‘camp’ identifies all the premises where those third country nationals intending to enter the European Union are involuntarily placed. This concept includes all the systems of imprisonment by which the immigrant is deprived of his/her rights and liberties. While the camp can be ‘open’ or ‘closed’, the close nature usually predominates in practice. An EU policy dealing with the reception of asylum seekers and their accommodation in camps is still in its infancy. The discretionary power exercised by the Member States in this field is very important. Also, there is a wide diversity of camps for third country nationals in Europe. Special attention needs to be paid to the respect of fundamental rights and the individual needs by each third country national who might be residing in camps. This is at times difficult to ensure due to size of the camps, the lack of resources as well as because of the negative image linked to those immigrants who are placed in these camps. Also, in practical terms there is some confusion among the different statuses of the immigrants who are might be found in the camps. Finally, the statistical data concerning how many third country nationals are actually inside camps has not been yet centralized nor at EU level neither at national level.

IP/C/LIBE/FWC/2005-22/SC2

This note was requested by: The European Parliament’s committee on Civil Liberties, Justice and Home Affairs.

This paper is published in the following languages: EN, FR.

Authors: Mathieu Bietlot (GERME – Université Libre de Bruxelles)

Under the supervision of Professor Elspeth Guild

Manuscript completed in 10 July 2006

Copies can be obtained through: Tel: 32105

Fax: 2832365

E-mail: japap@europarl.europa.eu

Informations on DG Ipol publications: http://www.ipolnet.ep.parl.union.eu/ipolnet/cms

Brussels, European Parliament

The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament.

CENTRES FOR THIRD COUNTRY NATIONALS

Mathieu Bietlot

DEFINITIONS

«Camps» or «Accommodation Centre»?

In its recent documents regarding the systems for the reception of asylum seekers, the European Commission advocates the term «accommodation centre» to refer to the collection of premises used for the collective accommodation of asylum seekers, regardless of the stage of the asylum procedure they are in [1]. When it relates to the reception and accommodation of asylum seekers during the procedure, these centres are generally more or less open and the name «accommodation centre» consequently proves adequate. It is much less so when it relates to centres where foreign nationals are locked up in order to prepare for their deportment and to prevent them from escaping from decisions taken with regard to their stay. This relates less to reception and accommodation centres than to detention camps. Considering that in some member states, the same premises simultaneously serve for the reception of asylum seekers in the asylum procedure and for detaining foreign nationals in the process of deportment and that some asylum seekers suspected of being in bad faith are detained from the first day of the procedure in order to facilitate their deportment in the event of a negative response to their application, the term «accommodation centre» does not appear appropriate to us to refer to all the premises where nationals of third countries may be brought together.

Specialist researchers on the matter – notably in CEPS and the Migreurop network – opted for the use of the word «camp» in order to refer, with strict semantic and analytical regard, but without euphemism, to all the premises where the European asylum and immigration policy confines third country nationals. The use of the term «camp» does not intrinsically relate back to the entire experience but refers to the premises assigned for the residence of populations (if not de jure, de facto), the forced maintenance under the control of a group of people not (yet) who are not authorised to stay on the territory of a member state [2]. So understood, the concept of «camp» does not only cover the premises of deprivation of liberty that can be physically situated, but all the devices of relegation which the foreign national is, at least partially, deprived of his/her rights and liberties [3]. Contrary to an «accommodation centre», the term «camp» shows that the persons residing there did not choose it themselves, which is the case both for asylum seekers in the procedure and foreign nationals in the process of deportment. Consequently we will use the term «camp» to refer to all these premises.

The diversity of camps for foreign nationals in Europe is very great. These may be open or closed, private or public (subcontracting of the management of camps to private companies appears to be an increasing trend in Europe), official or informal, intentionally conceived or improvised, permanent or temporary, elementary or sophisticated (in terms of hygiene, nutrition, access to information and communication, etc.). The public residing in them, the duration of the stay, the regulations in force (rights and obligations of residents, activities, visits, etc.), the installations provided for certain target groups (families, minors, traumatised or disabled people, etc.) are also extremely variable. The Migreuropnetwork has drawn up a map, which is regularly updated, of these different camps in Europe and on the boundaries of Europe, distinguishing between open and closed camps and the types of foreign nationals present in them [4]. It is apparent from this review that all the Member States of the EU use camps for nationals of third countries in the framework of their asylum or immigration policy.

The difference between an open and closed camp: accommodation or detention?

In order to distinguish between «open» and «closed» camps, we will refer to the preceding memorandum published by the C.E.P.S. concerning camps in Europe [5]: a camp is considered as being open if the individuals obliged to reside there have the ability to leave the camp as they wish or to move around within a reasonable area. The individuals may for example leave the camp for the day, possibly under certain conditions [6] and return in the evening. It is supposed that it is in the interests of the residents of the camp to return there and there is no need for the authorities imperatively to keep these individuals at their disposal. These camps are primarily intended to offer accommodation to migrants without any resources (most often asylum seekers without a work permit) to register their identity to make it possible to locate them during the procedure for obtaining a residence permit. Currently, open camps form mainly part of the systems for the reception of asylum seekers in the procedure and are governed by asylum legislation. In general they fall under the jurisdiction of the minister responsible for social affairs, employment, integration or public health [7].

A camp is termed closed if the individuals residing there do not have either the right or ability freely to leave the camp boundaries. This type of camp consequently requires the infrastructure of a prison: grills, barbed wire, high walls, security guard service, security patrols or cameras, secure access, etc. In the framework of European asylum and immigration policies these camps have multiple functions. Firstly, there are holding camps where migrants who presented at the border without fulfilling the conditions required to enter the territory of a member State or for whom the identity or grounds for travel are suspect (including the grounds for a request for asylum). They will wait there either to be allowed to enter the Member State or to be returned to their country of origin or transit. Secondly, there are detention camps where migrants already present on the territory but whose stay is or has become irregular are imprisoned, the imprisonment is intended to penalise the irregularity of the stay and to encourage a voluntary return. Thirdly there are deportment camps where migrants are sent for whom the procedure for asylum or a residence permit has failed and for whom the deportment is being organised. Often, the closed camps combine a number of these functions. This does not fail to create tension between detainees with different statuses and confusion in the perception of the migrants by the national population or the officials. The closed camps generally fall under the jurisdiction of the minister responsible for immigration control, home affairs or justice [8].

They are very similar to the prison system and are often felt as such by the foreign nationals detained there (these emphasise that the only significant difference is in the regulation of life which is often collective in the camps as opposed to individual cells in the prisons). In some member States, the prisons are also used to detain foreign nationals in an irregular situation, either due to a criminal conviction for an illegal stay (followed by deportment) [9], or simply during the preparatory period for the deportment [10]. Sometimes it also occurs that at the end of a sentence on the basis of a breach of common law committed by them, the foreign nationals are transferred from the prison to a closed camp for their deportment, either because they were irregularities in their stay or because they are the subject of a banishment order. These practices do not fail to cause some confusion in the perception of the foreign nationals (mixture of criminality and immigration) in the eyes of the staff in the camps and the population of the member states and the foreign nationals themselves.

With the exception of the latter cases, individuals residing in a closed camp are the subject of a measure of deprivation of liberty but unlike a prison detention, they have not committed any crime (except having breached or being suspected of wanting to breach the administrative law governing access to the territory), this measure is not the result of a decision by the courts (with the guarantees offered by judicial proceedings in a State of right) and its duration is not set as a result of the establishment of the sentence. It is supposed to be short, limited to the time strictly necessary for the organisation of the deportment with, if necessary, depending on the legislations of the member states, a maximum limit [11]. In practice, it is apparent that this deprivation sometimes extends to months or even years [12].

1.3. Pertinence of the distinction and issues of an open camp

In the present situation, the distinction between an open and closed camp is not as clear as it appears. This mixture of type can be explained in numerous grounds.

1.3.1. Blurred boundaries

In many member states, the same camp may be used simultaneously to accommodate asylum seekers waiting for an initial decision or the result of their appeal against a negative decision, foreign nationals whose petition is rejected at the end of the procedure, foreign nationals irregularly having entered or stayed in the territory as well as detainees under common law of foreign origin. Provision is sometimes made for this cohabitation of different statuses of foreign nationals in the national legislation but more often is the result of pragmatic need (lack of space in the different camps, security measures, etc.). The pragmatism and improvisation appears generally to govern the creation, organisation and current management of the camps. Set-up in an emergency and «with the means available», the reception and detention of migrants is primarily characterised by its «ad hoc» nature only later to be regulated and legalised [13].

When considering the practical functioning of an open camp, the way of daily life and the actual rights of its residents, it quickly becomes apparent that, in many cases, the accommodation available is not as open as presupposed. Certainly, the camp is not surrounded by physical enclosures and its doors are open but a series of obstacles prevent the free movement of its residents. Firstly material reasons bind asylum seekers to their place of residence during the course of the procedure: in the majority of cases, not having any source of income, the residents are obliged to be present in the camp at the set mealtimes to be able to sustain themselves, to have returned from any trip before the curfew in order to benefit from a bed for the night and do not have the means to lead a decent life outside in western societies where money is everything [14]. Further, the administrative insecurity of these migrants leads to prohibiting any exit: they are not insured (accident, health, liability) except within the boundaries of the camp, any incidents occurring outside being payable by them. According to the States and legislations, a good number of asylum seekers in the appeal stage against a negative decision reside in the open camps and as this appeal often does not suspend the expulsion order, once beyond the perimeter of the camp they are at the mercy of any identity check followed by their transfer to a closed camp and finally their deportment. In general, the residence status and consequently access to rights of populations living in the camps is very precarious, the residents only having a sense of legal security inside the camp. In addition, studies have shown that due to fears of a, supposed, bad acceptance by the local population of the reception centres for foreign nationals, the open camps are either constructed outside urban centres (which does not facilitate activities outside or the intervention of NGO’s able to assist asylum seekers, or their socialisation with a view to their future integration), or run in a such a way as to prevent all contact between the resident of the camp and the neighbouring population. In this way open camps tend to function self-sufficiently, all aspects of daily life are undertaken there, all the services and activities intended for the residents are internalised there (including schooling for the children). Through their practices and discourse, the managers of open camps try to do everything they can to generate avoidance practices between the neighbouring population and residents, to discourage any exit (notably in emphasising the risks run outside and the hostility of the local population). The effectiveness of these systems is apparent from the discourse of the asylum seekers who talk of «ghetto» or of «prison» to explain their accommodation [15]. Following the example of the detainees in the closed camps…

Recently negotiations – or even official agreements – have been observed between authorities responsible for repatriations and authorities responsible for the reception of asylum seekers (whose competences appeared until now contradictory) intended to allow the arrest and deportment of foreign nationals at the end of their procedure even from within the accommodation centres: the reception centre in that way transforms into an antechamber for the deportment and the boundary between an open and closed camp becomes always more blurred.

1.3.2. Communal difficulties

The distinction between open and closed camps is also blurred when considering the difficulties facing both the residents and staff in these camps.

The main common factor and source of problems which make difficult the management of the camps is the huge diversity characterising the foreign population living within it. A diversity of origin and hence language, customs, religious, culinary habits, hygiene, etc.; the legal status, the socio-professional status; age, family type and situation; political opinions and undertakings; physical and mental health; the duration of the stay in the camp (appendix 1 explains this diversity in detail). Respect for human dignity implies that a serious of actions should be taken in order to respond to these different needs or sensitivities. For example it must be possible for residents in the camp not to break their dietary rules, that they have access to information in their own language or to interpreters, that they may practice their own religion, that the infrastructure be adapted to their abilities (minors, elderly, disabled, etc.), that the activities offers correspond as much as possible to their centres of interest, etc. Depending on the member states and their respective legislation, efforts in this regard are quite variable but, due to means, it is too often a case of homogenisation and levelling down that prevails.

When we are aware that the majority of nationals from third countries are still, when they arrive in a camp, traumatised by the reasons for their exile, by the events of their trip, by a difficult adjustment to the western world in their precarious situation and by the uncertainty of the future, it is easy to understand that the intense overcrowding between such diverse populations causes numerous ills, tensions and conflicts that are hard to manage by the framework staff. Always due to a lack of means, the repressive or disciplinary option is often preferred: surveillance, sanctions, imposition of extremely strict rules for collective living, isolation of peoples or groups likely to come into conflict, etc. This reinforces the closure of the camp on itself and its assimilation with closed camps where the tensions are multiplied by feelings of incomprehension, traumatism or revolt that will result in the imposition of a prison regime on migrants who do not understand what crime they have committed…

The regime of collective living results in a certain disappearance of the individual for the benefit of the group. In many camps there is, moreover, an almost total assumption of responsibility for the daily life of the residents by the institution: accommodation, meals, laundry, their use of time, their movements and administrative actions are decided in their place by the rules in force in the camp [16]. This results in some removal of responsibility, infantilization or impersonalization of individuals forced to spend up to numerous years of their life in a camp (sometimes at a crucial age for the formation of the personality). Such an indirect consequence of the camp system is not beneficial either for the integration in the receiving country in the event of a positive outcome of the procedure, or to restarting a productive life on returning to their country of origin or a third Country in the event of a negative outcome.

Another level at which the open and closed camps converge or complement each other is in the symbolic dimension of the camp system. From this angle, we cannot say anymore that the camp functions self-sufficiently. During debates relating to different legislation concerning the camp, in particular the detention of migrants not (yet) authorised to stay on the territory of a member state of the EU, the idea of a strong signal sent both to candidates for asylum or immigration and the local population is formulate. With regard to future migrants, it is clearly a question of informing them that if they attempt to abuse the asylum procedures or the immigration laws to come to Europe, they risk incarceration and expulsion, that they will not have any right to social assistance which they are suspected of wanting to benefit from as they will not receive any aid other than in kind (accommodation, food, etc.) provided within a camp. For the local population, the European governments express that firm measures will be taken against the threat of invasion by alleged hordes of migrants clamouring at the gates of Europe and that the situation is controlled by a «flexible, efficient and quick» management of migrating flows. In this way they intended to reassure the population, calm its fears, stifle its latent xenophobia and deflect the vote from the extreme right parties. We note that this type of message – coupled with the confusion present in the populations in the camps and the mixtures it causes – has adverse or counterproductive effects as it communicates a negative perception of all migrants (associated either closely or distantly with delinquents as they are incarcerated) and contributes to the maintenance of a feeling of insecurity, mistrust and withdrawal into oneself. If the message is apparent in the case of closed camps, it is also insinuated for open camps, notably by the bias of the policy of avoidance mentioned above and a communication of the authorities of the accommodation centre with regard to the neighbourhood insisting on the surveillance of the residents, on measures taken so that they should disturb the neighbourhood as little as possible and on the severe system of sanctions it applies in the event of the slightest faux pas or «incivility».

The consequences of such a symbolic policy concerning the future integration of new migrants or asylum seekers and social cohesion in general would benefit from greater attention from European Parliamentarians.

THE REGULATION OF AN OPEN CAMP

As we have already mentioned, the majority of the camps were set-up pragmatically and to deal with an urgent situation before being the object of an official and legal framework. The case of Sangatte is revealing both of the awareness of the problem concerning the reception of nationals from third countries in the entire EU and the vague legal basis and improvisation that characterise these institutions that became the central instruments of European public policy with regard to asylum and immigration. European legislation on this matter has also revealed itself as behind practice/late on the practice. These aspects of the issue have already been the subject of publications which we have summarised in appendix II. Here we will only mention one fundamental point.

Minors and the open camp

For reasons of sensitivity and on clear humanitarian grounds the presence of children in camps, whether open or closed, has always been the object of special attention, firstly on the part of NGO’s and subsequently by the authorities. The international Convention on the rights of the child (art. 37) and the International Covenant on Civil and Political Rights strictly prohibit the detention of minors. Consequently there cannot be any question of detaining a minor, regardless of their administrative status, in a closed camp, yet practice shows that the opposite is the case… the presence of children, with or without their parents, in open camps must in itself fulfil a certain number of conditions.

With this in mind, the lot of children is taken into consideration by numerous articles in the Directive relating to minimum norms for the reception of asylum seekers (2003/9/CE adopted on 27/01/2003): article 8 guarantees the preservation of the family unit and article 14§3 advocates the children reside with their parents; article 10 assures access of minors to the education system under similar conditions to nationals (the education may be provided in an accommodation centre); article 18 repeats that the greater interests of the child must be a priority in the implementation of the Directive by the member states and that care adapted to their situation must be given to minors; article 19 arranges guardianship and the placement of unaccompanied minors seeking asylum: if they cannot be placed in a host family, they may only be placed in accommodation centres specialised in the reception of minors. In point 1.3.2 we mentioned that the living conditions and tensions inherent in camps are not very favourable for the development of children. Member states that have designed camps specifically adapted to the needs of the child are still rare.

Sovereignty and national characteristics

Appendix I indicates that European law able to govern the organisation of the camps is relatively recent and only imposes minimal standards on the member States. Considering the slowness of the harmonisation process for asylum and immigration policies and the absence of a consensus, it is still very often up to the discretionary authority of the States that prevails in matters of territorial sovereignty and, more precisely, border crossing by nationals of third countries. From the initiation of the communitisation programme of asylum and immigration policies in 1999, the majority of governments have however not hesitated, each on their own territory and without any dialogue, to undertake profound reforms of the national policies on this matter, notably in the field of the reception or detention of nationals from third countries [17]. This aspect of asylum and immigration policy remains largely dependent on the national governments, or even NGO’s or private companies to whom this is partly subcontracted. It is consequently not possible in such a short memorandum to draw up a complete overview of the camps for extra-community foreign nationals in the EU; we will simply try to sketch the main trends and to bring up salient points.

The law governing open and closed camps varies considerable from one member state to another: it may fall under criminal or administrative law or even be located at the intersection of the two. Some countries like Germany, France, Austria, Sweden and the United Kingdom have a long tradition of the institutionalisation of the reception policies for refugees while others, principally the new member states, this relates to a much more recent concern. In some countries like Italy the subject remained hardly institutionalised for a long time but the reception of refugees was the responsibility at a local level of NGO’s. Under European influence, decisive reforms in asylum and immigration policies were realised in all the member states, tending towards institutionalisation and increased centralisation of the management of the camps. The centralisation of the accommodation and detention policies in relation to taking decisions and financing does not however prevent subcontracting the practical management of the camps out to the local authorities, NGO’s or private companies. The majority of member states have numerous types of camps intended for nationals from third countries (open/closed, collective/individual, private/public) for which the choice depends, from one country to another, either on the status and profile of the foreign national or the stage in the procedure, or the discretionary power of the authorities, or in the available place or the preference of the foreign national themselves.

DISTRIBUTION AND DEMOGRAPHY OF CAMPS IN THE EU

In order to form an idea of who is present in the camps – based on the theory of mathematical sets – we may try to define their population in «comprehension» and «extension». In the first case, we will try to define the administrative status of persons moving through the open and closed camps. Appendix III shows a general diagram. In the second case, it is necessary to draw up an exhaustive inventory of all the camps existing in the EU and to support this with their demographic statistics. This exercise would prove extremely difficult. The statistics concerning migration in general are not easily accessible or comparables, each member state does not draw up the same tables. A source of reference data such as Eurostat does not provide figures relating to the number of asylum seekers until 2002 and these do not always correspond with the statistical reports from the various member states. No European statistics exist with regard to the number of camps, their typology and population and those of the States cannot always be compared easily. The model of the camps differs from one country to another which makes it hard to compare the figures. Appendix IV consequently only gives an approximate outline of the data we were able to obtain by contacting researchers, associations and Internet sites of the EU States. The results of this research are neither exhaustive nor representative but only indicative.

RECOMMENDATIONS FOR A TRULY OPEN CAMP

In order for a camp to be considered truly open, the following conditions must be met:

Respect of the fundamental rights as guaranteed by the ECHR must remain a priority in all reception policies for nationals of third countries. For example it is unacceptable for individuals to be used and their rights scorned for the purpose of public messages (dissuasion of migrants and assuaging the national populations).

The freedom of movement (art. 5 ECHR) for residents of an open camp must be effectively guaranteed on the territory and materially assured.

So that they are not in a dependent situation and to allow them to integrate in the receiving society, the residents of a camp must be given the possibility to work (or to receive benefits).

With regard to the dignity and needs of the individual and with a view to the independence of migrants, the residents of the camp must be able to participate in the organisation of the camp (kitchen, timetable, activities, etc.) or be able to organise their own daily life in personalised apartments. At the least, the persons responsible for the camp must take the individual needs into account for each national of a third country (diet, religion, interpreting services, media, etc.)

For the accommodation centre to appear less like a «camp», less like an enclave or ghetto in the reception society, work on communication and contact with the national population is primordial. Grouping together foreign nationals with different statuses (notably with detainees under common law) should be avoided. Another, less suspicious, perception of migrants would benefit from being propagated. History has shown that places where groups of people are kept who are considered as undesirable or unwelcome – and presented as such to officials entrusted with their supervision – encourages drifts and skids, lack of respect of dignity and fundamental rights.

The smaller the camp, the less tension and impersonality, the more independence of the residents is encourages, the more the integration of the camp within the local society is accepted by the neighbourhood.

Systems for individual, private accommodation, financed by the public authorities, for asylum seekers seems to pose less of a problem that the camps.

In order to reduce all the aforementioned problems with the reception of nationals of third countries in camps, an increasingly open and immaterial «camp» system should be considered: the migrants will no longer be confined in defined premises but may choose their residence and have access wither to work or temporary benefits during the asylum procedure. They will be obliged to contact the administration every week to prove that they are cooperating in the procedure and that they do not intend to disappear clandestinely. Closed camps would only serve to keep migrants available who are unauthorised to stay in the territory and who have clearly shown their desire to circumvent the control by the authorities.

Centres for Third Country Nationals