Blog post by Dr Lorenzo Bernardini, University of Luxembourg
Introduction
In recent years, the issue of administrative immigration detention has ignited fervent debates across Europe. According to the definition provided by international bodies and scholars, administrative detention may be imposed on migrants based on their immigration status, either as applicants for international protection or individuals with irregular status due to unauthorized entry or residence (including those people subject to detention for the purpose of transfer as part of safe third country agreements). States claim that detention serves as a mechanism to regulate migration flows by depriving the concerned migrants of their liberty pending the international protection procedures or the execution of their return or transfer.
Zooming in on European countries, it is well-known that the latter progressively increase the use of this legal tool to manage migration flows more effectively. However, growing concerns regarding the respect for fundamental rights during detention have been raised by scholars, policy-makers, practitioners and NGOs worldwide. Precisely, it has been observed that this practice, enshrouded in bureaucratic, lengthy, and opaque procedures, frequently evades the scrutiny it warrants, resulting in severe implications for migrants subjected to it.
The core issue surrounding administrative detention lies in its ostensibly administrative and non-punitive nature. The designation of immigration detention as an ‘administrative’ measure serves to distinguish this form of detention from other forms of deprivation of liberty typically occurring within criminal procedures, such as pre-trial detention of suspects or punitive detention measures imposed on convicted individuals. Opposing this understanding, I believe that the true nature of immigration detention reveals a system that bears striking resemblances to criminal punishment. This blog post calls for a paradigm shift in this field, depicting the punitive nature of administrative immigration detention and ultimately arguing for a re-evaluation of its characterization and the need for adequate legal safeguards.
The main issue – adopting punitive measures without criminal law safeguards
It is well-known that the European Union (EU) has long grappled with the challenge of managing migration flows. Amidst this struggle, Member States have increasingly relied on administrative detention as a tool to control and deter irregular migration. This legal tool allows for the deprivation of liberty of third-country nationals (TCNs), whether they are irregular migrants or asylum seekers, under the guise of administrative necessity. In the EU legal framework, detention for the purpose of return is expressly allowed and regulated by Articles 15-18 of the Return Directive (Directive 2008/115), whereas asylum detention is expressly allowed by Articles 8-11 of the Reception Conditions Directive (Directive 2013/33), Article 26 of the Asylum Procedures Directive (Directive 2013/32) and Article 18 of the Dublin III Regulation (Regulation 2014/604).
For the sake of completeness, it is noteworthy that additional provisions on immigration detention will apply in the EU legal framework as of 2026. These provisions form part of the wider New Pact on Immigration and Asylum, ‘a set of new rules managing migration and establishing a common asylum system at EU level’. Reference may be made, inter alia, to:
- Articles 4(2), 6(1)(a), 18(3), 29(5) and 30 of the Asylum Procedures Regulation (Regulation 2024/1348), regulating inter alia asylum border procedures;
- Articles 10-14 of the Reception Conditions Directive (Directive 2024/1346), regulating substantive and procedural grounds detention of applicants for international protection;
- Articles 5-6 of the Return Border Procedures Regulation (Regulation 2024/1349), regulating detention for the purpose of return within border procedures;
- Articles 44-45 of the Asylum and Migration Management Regulation (Regulation 2024/1351), which will repeal the Dublin III Regulation and will regulate detention for the purpose of transfer of applicants for international protection among Member States.
By analogy, Article 5(1)(f) of the European Convention on Human Rights (ECHR) permits Member States to employ non-criminal detention measures for immigration purposes, namely, ‘the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition’. The adoption of multiple pieces of legislation addressing this issue has facilitated – and, to some extent, enhanced – a systematic trend in this regard, normalizing the use of administrative detention across Europe.
But why do EU Member States and ECHR State Parties resort to administrative detention for immigration purposes, and why is there a systematic trend in employing this instrument instead of others? It is not only because administrative detention allows them to physically control foreigners, thereby allegedly rendering return or asylum proceedings more effective. More importantly, it enables them to circumvent significant procedural and substantive guarantees inherent in the criminal justice system. Unlike the criminal law realm – which triggers substantial guarantees for the defendant due to the potential imposition of punishment, such as the right to silence, presumption of innocence, and right to habeas corpus – administrative law provides for lower protection. Indeed, detention is a tool characteristic of criminal law, and its employment is therefore surrounded by specific guarantees. By contrast, administrative law, by its nature, should resort to alternative interim measures to detention. Therefore, it goes without saying that administrative law protections are not specifically designed for detention issues.
By labelling immigration detention as ‘administrative’ or ‘non-criminal’, states have been given a blank cheque to detain migrants outside of criminal proceedings, relying on the non-criminal nature of the measure. However, this seemingly neutral and harmless approach masks a harsher reality – administrative detention serves punitive purposes akin to criminal sanctions, harshly encroaching upon personal liberty of the migrants concerned, but without the accompanying legal protections.
It is worth recalling that the punitive purpose and the degree of severity of a legal tool constitute two of the three criteria established by the case law of the European Court of Human Rights (ECtHR) to determine whether an administrative law measure is in fact criminal in nature (Engel, Jussila, A. Menarini Diagnostics, Grande Stevens). These criteria are also applicable within the EU legal framework (see the CJEU’s judgements DB, Bonda, Åkerberg Fransson,Garlsson Real Estate). In sum, these criteria serve as a mechanism to thwart abusive or ill-founded labelling assigned to the administrative law measure at stake at the domestic level. Indeed, both the ECtHR and the CJEU can conduct their own assessment of the legal tool under scrutiny, surpassing the literal definition provided for – a measure deemed administrative in nature may be classified as criminal after an autonomous analysis carried out by the court.
First point – the existence of a (hidden) punitive purpose
The first aspect that can provide some merit to the thesis that administrative detention is a ‘punishment without a definite crime’ relies on its punitive purpose.
Firstly, it is noteworthy that the CJEU has straightforwardly denied this characterization. In Landkreis Gifhorn, it found that ‘when ordered for the purpose of removal, the detention of an illegally staying third-country national is intended only to ensure the effectiveness of the return procedure and does not pursue any punitive purpose’ (para 38, emphasis added). By analogy, it seems likely that the CJEU would follow a similar line of reasoning with regard to asylum detention. To sum up, the CJEU has rejected categorizing administrative detention as criminal by relying on a teleological argument, asserting that such a measure does not serve punitive purposes.
Nevertheless, it seems that administrative detention primarily aims to punish TCNs for non-cooperation and for preventing the State from executing certain procedures. This is evident in pre-removal detention regime under Article 15 Return Directive, that provides for the possibility to detain TCNs when there is a ‘risk of absconding’ or when the TCN concerned hinders return or removal processes. It might be difficult to deny that this measure de facto aims at compelling migrants to cooperate and punishes them for reluctance, thus revealing its punitive nature.
The same logic seems to apply to the relevant provisions contained in the New Pact on Immigration and Asylum, which aim to regulate irregular migrants’ detention return procedures at the border. Specifically:
- according to Article 5(2) Regulation 2024/1349, asylum seekers whose applications have been rejected within the border procedure, who were (already) detained during said procedure, who no longer have a right to remain and who are not allowed to remain, may continue to be detained ‘for the purpose of preventing their entry into the territory of the Member State concerned, of preparing their return or of carrying out the removal process’.
- according to Article 5(3) Regulation 2024/1349, asylum seekers whose applications have been rejected in the border procedure, who were not detainedduring said procedure, who no longer have a right to remain, and who are not allowed to remain, may be detained: (i) if there is a risk of absconding (as defined by the Return Directive); (ii) if they avoid or hinder the preparation of return or the removal process, or (iii) if they pose a risk to public policy, public security, or national security.
That being said, the punitive rationale surrounding this kind of deprivation of liberty is quite evident, with the intent being to punish the migrant for their – even potential – hampering conduct.
Similarly, asylum detention shares this punitive character. Under EU law, asylum detention can be imposed should it be essential for assessing the essential elements of an asylum application or verifying an applicant’s identity, especially when there is a risk of absconding. Here, too, the obstructive behaviour of the applicant often prompts detention, subtly highlighting its punitive justification. Even in cases where the conduct does not directly impede asylum processes, detention serves to reprimand individuals for perceived dangerous or abusive behaviour (e.g., where detention is ordered on the basis of national security or public order grounds), further demonstrating its deterrent and retributive (i.e. punitive) purposes. Similar grounds for detention have been laid down in the brand-new Article 10 Directive 2024/1346 which are applicable to asylum border procedures as well (cf. Recital 69 Regulation 2024/1348).
In conclusion, the essence of administrative detention, as shaped by EU law, reveals an inherently punitive nature. Both pre-removal and asylum-related detention reacts to individuals perceived as ‘somewhat irresponsible and untrustworthy’ due to their irregular entry or stay. Article 5(1)(f) ECHR supports this view, allowing TCNs’ detention to prevent unauthorized entry or to facilitate deportation, based on their conduct.
Second point – the harsh degree of severity
In addition to its punitive intent, administrative detention should be regarded as a tool de facto rooted in criminal law, due to its harsh degree of severity. At least three features of this legal tool may be identified in this regard.
A. Administrative detention encroaches upon personal liberty
As explained above, administrative detention stands as the sole protracted deprivation of liberty that can be imposed irrespective of any prior criminal law violations, and its legitimacy has been upheld on the grounds of its formal non-punitive character. Yet, as detention is ‘something closer to punishment’, there exists no practical distinction in the deprivation of liberty imposed upon a suspect or accused person and a TCN, as both individuals undergo a comparable degree of deprivation of personal liberty.
Numerous rulings rendered by the ECtHR and the CJEU have acknowledged that pre-removal or asylum detention measures inflicted upon TCNs constitute a deprivation of liberty under Article 5 ECHR and Article 6 of the Charter of Fundamental Rights of the EU (‘the Charter’), despite the efforts of the Member States to characterize administrative detention as merely a bureaucratic restriction on the freedom of movement. It seems thus indisputable that the level of severity experienced by TCNs due to administrative detention measures is materially equivalent to that experienced by suspects and accused persons subjected to criminal detention measures.
B. Administrative Detention is Enforced Under Prison-Like Conditions of Detention
The assumption that the deprivation of liberty experienced by TCNs in the context of pre-removal or asylum detention is comparable to that suffered by a suspect or an accused person in the context of criminal proceedings brings us to the second point – TCNs are detained in conditions akin to those in prison facilities. This stems from two considerations.
On the one hand, both Article 16 of the Return Directive and Article 10 of the Reception Conditions Directive foresee the possibility for migrants to be detained within penitentiary premises if a Member State is unable to furnish accommodation in a specialized detention facility. This can happen only where such Member State can ensure that, in the context of pre-removal detention, ‘the third-country nationals in detention [are] kept separated from ordinary prisoners’, whereas, in case of detained applicants for international protection, they shall additionally be kept ‘separately from other third-country nationals who have not lodged an application for international protection’. It is noteworthy that detention in penitentiary premises is permitted in the context of return border procedures (cf. Article 4(3) Regulation 2024/1349) as well as in asylum border procedures (cf. Recital 69 Regulation 2024/1348 read in conjunction with Article 12 Directive 2024/1346).
The CJEU has stressed that this requirement ‘is more than just a specific procedural rule for carrying out the detention of third-country nationals in prison accommodation and constitutes a substantive condition for that detention, without observance of which the latter would, in principle, not be consistent with the directive’. Hence, detention within ad hoc centres is the norm, confinement within penitentiary facilities is the exception. Nevertheless, this latter possibility is deemed legitimate and is precluded neither by the EU legislator, nor, indeed, within the ECHR legal framework. It is thus common that Member States employ their penitentiary facilities for the purpose of detaining TCNs (see the CJEU’s judgements WM and Landkreis Gifhorn). In turn, if migrants are detained in the same facilities as suspects or accused persons, this implies, from a practical standpoint, that both administrative and criminal detention exhibit the same level of severity.
On the other hand, even ad hoc facilities bear a fundamental resemblance to prisons. It has been emphasized that, across European countries, TCNs are, in practice, subjected to a deprivation of liberty for immigration purposes mostly within these aforementioned ad hoc facilities. As aptly observed, immigration detention centres function as places of detention and segregation where conditions are even worse than those provided within prison facilities – this is because, as detained TCNs fall outside the criminal law framework, all the safeguards afforded to suspects or accused persons do not apply to them. This issue has been the object of Resolution 1707 (2010) approved by the Parliamentary Assembly of the Council of Europe (‘PACE’), where it has been emphasised how, in those ad hoc facilities:
conditions can be appalling (dirty, unsanitary, lack of beds, clothing and food, lack of sufficient health care, etc.) and the detention regime is often inappropriate or almost entirely absent (activities, education, access to the outside and fresh air). Also, provision for the needs of vulnerable persons is often insufficient and allegations of ill-treatment, violence and abuse by officials persist. This all has a negative impact on the mental and physical well-being of persons detained both during and after detention.
C. Administrative detention could lead to extremely long periods of deprivation of liberty
There is at least a last factor to be briefly considered, that is, the duration of detention. Under the ECHR legal framework, there is no indication of a time-limit for the deprivation of liberty to be carried out as per Article 5(1)(f) ECHR. From the ECtHR’s case-law, it can be inferred that, on a case-by-case basis, detention should not be excessive, and the duration of the deprivation of liberty must be reasonably justified in relation to the objective pursued by such detention measures. Still, there is no fixed numerical threshold beyond which detention becomes inherently arbitrary. The ECtHR has indeed specified that ‘the question of whether or not a period of detention is reasonable cannot be assessed in the abstract but must be assessed in each case according to its special features […] and that the arguments for and against release must not be “general and abstract” […], but contain references to the specific facts and the applicant’s personal circumstances justifying his detention’. This has led the ECtHR to conclude, for instance, that a six-month period of detention during the assessment of an applicant’s international protection request was not excessive and, thus, arbitrary per se.
In contrast, within the EU legal framework, there are two distinct regimes. Regarding pre-removal detention, in accordance with Article 15 Return Directive, irregular TCNs may be detained for a maximum period of eighteen months, a time limit that is evidently not of negligible significance. In the context of return border procedures, said time limit is shorter but still significant – it shall not exceed 12 weeks (Article 5(4) Regulation 2024/1349).
Differently, in the context of asylum detention, Article 8 Reception Conditions Directive does not stipulate any specific time limit concerning applicants for international protection. The same holds true within asylum border procedures (cf. Recital 69 Regulation 2024/1348) as well. This aspect has rightly been deemed ‘indefensible’, as the lack of a time limit clearly disregards the importance of the right to personal liberty of the individuals concerned, that is, ‘persons who have not committed criminal offences but who, often fearing for their lives, have fled from their own country’.
To sum up, it is apparent that deprivation of liberty for immigration purposes, in the context of both pre-removal or asylum detention, is typically enforced for exceedingly protracted periods, frequently longer than those permitted in criminal proceedings.
Towards Adequate Legal Safeguards: A Call for Reform
Taken together, the interplay of these three factors – the prejudice against personal liberty, the prison-like conditions of detention and the broad time-limits of the measure – may lead to the conclusion that the administrative deprivation of liberty of TCNs functions as a severely detrimental measure against the individual who is subjected to it, thus depicting its de facto criminal nature. This reality demands a paradigm shift in how we understand and regulate detention practices. As was recently observed, ‘the stigmatisation of migrants in populist rhetoric is not new … and is currently evident in too many of our countries. Such discourse brings the risk of a shift in the way the administrative detention of migrants and asylum seekers is perceived – from a temporary situation while their right to stay is examined to a punishment’. I believe, however, that this risk has already been concretized in the current migration policies across Europe, that consider administrative detention to be the rule in governing migration flows, rather than the exception.
I believe that this scenario ought to change, however. Recognizing the punitive nature of administrative detention necessitates the application of robust legal safeguards traditionally associated with criminal proceedings. Against this background, I would argue that TCNs subjected to detention must thus be afforded the full spectrum of procedural rights, including the right to silence, the right to legal representation, and the right to a fair trial. Although these guarantees may already be acknowledged in relation to detained third-country nationals (e.g., the right to legal assistance, cf. Article 9(4) Reception Conditions Directive), the degree of protection currently provided remains inferior to that ensured within criminal procedures. Once the punitive nature of immigration detention is acknowledged, migrants will consequently enjoy broader protections.
These procedural guarantees are enshrined in Article 6 ECHR and in Article 47 and 48 of the Charter. Among these fundamental guarantees, the right to remain silent and not to incriminate oneself stands out as extremely relevant in the field of administrative detention. Article 6 ECHR, though not explicitly mentioning the right to silence or privilege against self-incrimination, enshrines these principles as fundamental components of a fair trial. The ECtHR has repeatedly affirmed that these protections prevent miscarriages of justice and support the fairness as a whole of relevant proceedings. They cover not just admissions of wrongdoing but also factual information that could support prosecution and influence sentencing. As already explained, the detained TCN’s non-cooperative behaviour may allow national authorities to extend their detention period. Once the punitive nature of such a legal tool is acknowledged, there seems to be no more room for imposing deprivation of liberty based on such a hampering conduct. Arguably, TCNs can still be obligated to provide certain information to domestic authorities, such as their identity papers. However, a request to act (against their self-interest) to expedite return or asylum procedures may conflict with the right to remain silent and not to incriminate oneself. Accordingly, following this paradigm, TCNs’ non-cooperative behaviour shall not justify extended detention, as this conflicts with their right to silence and protection against self-incrimination.
Conclusion
It goes without saying that acknowledging the punitive essence of administrative detention may challenge State interests, particularly in the context of asylum or pre-removal detention. Admittedly, this recognition and enforcement of procedural guarantees in favour of migrants – triggered by the acknowledgement of the punitive nature of immigration detention – will undoubtedly complicate state procedures. States will face increased challenges in managing migration flows and enforcing immigration policies, as the requirement to afford full procedural rights will necessitate additional legal and administrative resources.
However, refraining from acknowledging the criminal nature of such a legal tool would hinder – as it is occurring – the detained TCN’s effective enjoyment of fundamental rights. The current framework, which allows for extensive deprivation of liberty under ostensibly administrative measures, fails to uphold the fundamental rights of detained individuals. The severity and conditions of administrative detention closely resemble those of criminal sanctions, thereby warranting equivalent procedural protections. The mischaracterization of immigration detention as a purely administrative measure permits States to circumvent critical legal safeguards, resulting in significant human rights violations.
To redress this inequity, it is vital for legal practitioners to proactively raise this issue before domestic courts and ultimately the ECtHR. Remarkably, this argument represents an unprecedented venture, as it has yet to be addressed by the Strasbourg Court.
In my view, such an approach would ensure that all migrants are accorded the full spectrum of fair trial guarantees. After all, this reclassification is not merely a semantic revision but a necessary step towards upholding the rule of law and fortifying the rights of some of the most vulnerable individuals in society.
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