09 May 2014

The detention pending removal of foreign nationals in ordinary prisons may only be justified either by an unforeseen and exceptionally large number of foreign nationals to be returned, or by exceptional circumstances of urgency and seriousness in an individual case. In either exception, detainees must be kept separate from ordinary prisoners. Pleading a lack of specialised detention facilities for returnees in a federated state (länder in the case of Germany), and/or the consent of the detainee, is not enough. This is according to the Opinion of Advocate General (AG) Bot, written to help the Court of Justice of the European Union (CJEU) answer questions referred to it by two German courts regarding interpretation of the detention provisions of the Returns Directive.

The questions arise from the appeals of three foreign nationals who were all detained pending removal in ordinary prisons due to the lack of specialised facilities in the German state (Land) where they were detained. One of the detainees was not kept separate from ordinary prisoners and another had consented to her detention in a prison.

On the issue of consent, the AG highlights that nothing in the Returns Directive permits individual consent to prison detention. In addition, the risk of consent being given under pressure, the common absence of legal assistance, and the detainee’s lack of awareness of their rights, all lead the AG to reject the legal value of consent to ordinary prison detention.

The AG argues that the respecting human dignity, enshrined in Article 1 of the Charter of Fundamental Rights of the EU, ‘entails not making men, women and children awaiting removal look like criminals’.

This article originally appeared in the ECRE Weekly Bulletin of 9 May 2014.
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