The Spanish authorities have not suddenly had a change of heart regarding the use of immigration detention but rather recognised what activists have been saying all along – health and legal issues make the system untenable.
ADVERTISEMENTPerhaps one of the most forward-thinking elements of Spain’s response to COVID-19 was the decision to empty immigration detention centres. Spain has one of the highest death tolls in the world, and the country has recorded over 200,000 confirmed cases. On 14 March, the Spanish government declared a state of emergency and the population was ordered inside. Within a month, most of Spain’s immigration detention centres were empty and, at the time of writing, the immigrant detainee population on the Spanish mainland stood at just three.
The Spanish authorities have not suddenly had a change of heart regarding the use of detention but rather recognised what activists have been saying all along – health and legal issues make the system untenable. With poor sanitary conditions and the inability to socially distance, immigration detention centres are perfect virus incubators. The risk to detainees, staff and the wider public is obvious.
Spanish judges also made the case that police resources would be far better deployed on the streets to enforce the lockdown, now in its sixth week.
Equally, detention now has no legal basis. Detention centres are for use as temporary holding facilities prior to deportation. Spain sets a maximum limit of sixty days for a person to be held. The EU Returns Directive stipulates that detainees must be released if “a reasonable prospect of removal no longer exists.” Due to the near-worldwide shutdown of borders and air travel, returns are not possible. Therefore, immigration detention centres can no longer fulfil their purpose.
Now is the time to pivot away from the practice.
As Spanish detention centres were closed, detainees who could stay with friends or family were released first. Those without were offered the choice to stay in open reception centres run by NGOs with established experience of the rights and needs of migrants.
Though the interior ministry is ultimately responsible for immigration matters, the closures was notable because it was borne out of collaboration between local and regional authorities co-operating with civil society organisations, the Ombudsman, detention centre directors, and judges to ensure that the rights and dignity of migrants were respected. The truth is migrants with positive experiences of the immigration system are more inclined to engage with it. The process makes clear that a community-focused approach to hosting migrants can provide a pathway towards integration and is far more productive than confinement.
In the years following Europe’s refugee crisis we have seen the continent tighten borders, dilute asylum systems and punish migration-orientated civil society groups. The European Commission is drafting a new pact on migration and asylum that will likely place securitisation of borders over humanitarian and legal concerns, with detention being increased and lengthened. Though the backdrop is tragic, the pandemic sets the scene for these plans to be challenged. The Council of Europe has called for the pact to be underpinned by human rights, effective solidarity, and responsibility sharing. Detention has been suspended in Spain with no immediate negative consequences. Could it be that we never needed it?
Partial and large-scale releases have also been seen in the Netherlands, Indonesia, France, Peru, Thailand, the United Kingdom and the United States, but many countries are still yet to act. Greece and Italy, two of the main embarkation points for migrants arriving in Europe, are egregious examples. The Greek islands are host to squalid, dangerous and vastly overcrowded centres where families live in fear and desperation. Thankfully no confirmed cases of coronavirus have yet emerged from Moria - Europe’s largest refugee camp - but medical NGO Médecins Sans Frontières has referred to it as a time bomb.
It is encouraging that the Spanish authorities have conceded the obvious health and legal issues surrounding immigration detention. This should not be a one-off. Deportations are rarely a quick process and this often means migrants are locked up for a significant stretch of time in dismal conditions at great cost to the taxpayer. There is still work to do. Migrants still languish in essentially closed facilities in Spain’s two North African enclaves of Ceuta and Melilla. A thousand NGOs have launched a campaign for them to be released and for all undocumented migrants to be regularised, as neighbouring Portugal (albeit temporarily) has done and Italy is considering.
More than 30,000 migrants entered Spain by land and sea routes in 2019 and, although movement has temporarily slowed due to the pandemic, the push factors of conflict and poverty do not abate. Spain has shown that, within a matter of weeks, almost all of nation’s detention system can be closed due to health risks, human rights concerns and legal uncertainty. We must ensure that this applies worldwide after the pandemic lifts.
Magda Majkowska-Tomkin is division director for the Migration and Inclusion Unit of the Open Society Foundations’ Initiative for Europe.
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