Alternatives to detention in COVID-19 times: missed opportunity

06 May 2021

Due to international travel restrictions, enforcing returns in Covid-19 times has proven to be more challenging that it normally already is. In many cases it was simply impossible. Even when flights became eventually available, still they remained scarce and delays in executing returns often became longer.

Despite such a situation, detention of migrants for the purpose of enforcing returns was largely maintained throughout the pandemic. Regrettably, as research carried out by JRS Europe and its partners in seven EU countries shows, the pandemic did not result in an increased interest in the establishment of alternatives to detention. A missed opportunity.


Alternatives to detention before COVID-19

JRS defines ‘alternative to detention’ as any policy, practice or legislation that allows asylum seekers and migrants to live in the community with freedom of movement, while they undertake to resolve their migration status and/or while awaiting removal from the territory. According to EU law, Member States can resort to the use of detention if no other ‘less coercive measures’ can be applied.

Before the start of the Covid-19 pandemic, forms of alternatives to detention were present in some EU Member States. However, even where they were present, they mostly did not meet JRS’s definition, either because they were not oriented at case-resolution —but rather kept an exclusive focus on enforcing returns — or because they still considerably limited people’s freedom of movement (e.g. house arrest), being de facto alternatives forms of detention.


No new alternatives to detention

JRS insists that, in accordance to EU law, detention should not be used in a context of impossibility of carrying out returns. We also argue that returns should not be pursued as long as international travel is prohibited or discouraged. However, Member States kept trying to enforce return and detained people even while Covid-19 measures remained in force.

In such a context, with the preparation of removal processes likely to take longer, all the reasons as to why alternatives to detention are always to be preferred gain enhanced importance. They guarantee the respect of human dignity and freedom of movement, the possibility of establishing trusting relationships, increase migrant’s engagement with the process and reduce absconding. Regrettably, both in the period during and after the lockdown, no new alternative to detention was established in the EU countries examined by JRS.


Need for community based ATDs and case-management

Allowing people to either remain in their own houses or to be accommodated in the community facilitates the respect of physical distancing, something intrinsically difficult in detention centres. Moreover, implementing case-management ensures that all possible options for case resolution, including outcomes other than return, are properly examined, also against the specific context of the pandemic.

Against the background of the pandemic and beyond, JRS repeats therefore its calls to the responsible national authorities to establish alternatives to detention and to the European Commission to promote and monitor their implementation.