BOOKS by Izabella Majcher
Springer, 2020
This book offers a unique comparative assessment of the evolution of immigration detention system... more This book offers a unique comparative assessment of the evolution of immigration detention systems in European Union member states since the onset of the “refugee crisis.” By applying an analytical framework premised on international human rights law in assessing domestic detention regimes, the book reveals the extent to which EU legislation has led to the adoption of laws and practices that may disregard fundamental rights and standards. While emphasizing policies and laws adopted in response to the “refugee crisis,” the volume also shows how these policies have evolved—and in many cases grown more restrictive—even as the “crisis” has begun to recede from the borders of many European countries. To sharpen awareness of contrasting developments across the region, the book’s country chapters are organised into geographic sections that reveal how variations in migration pressures have in some cases resulted in contrasting detention practices even as the EU directives have sought to harmonise immigration laws. A critical focus of the book are the evolving domestic norms related to grounds for detention, length of detention, non-custodial "alternatives to detention," the treatment of children, and conditions of detention. With its systematic and comparative assessment of immigration detention regimes across the EU, the book will be helpful for both academics and practitioners who seek a comprehensive guide to the evolution of one of today’s more important human rights dilemmas—states’ efforts to control global migration.
Brill Nijhoff, 2019
The book undertakes a thorough human rights assessment of the EU Returns Directive. The overarchi... more The book undertakes a thorough human rights assessment of the EU Returns Directive. The overarching human rights framework, which circumscribes states prerogatives in the context of expulsion, builds upon obligations derived from the principle of non-refoulement; the right to life, respect for family and private life, effective remedy, basic social rights; the prohibition of torture and ill-treatment; and protection against arbitrary detention and collective expulsion. Based on this assessment, Majcher explores several protection gaps in the EU return policy which may result in violations of migrants’ rights and highlights how the provisions of the Directive should be implemented in line with member states’ human rights obligations. Informed by this assessment, the book discusses amendments to the Directive, proposed by the European Commission in September 2018.
Articles and Chapters by Izabella Majcher
European Law Journal, Vol. 26(3)-(4), 2021
The article holistically discusses the alleged new EU return system which the Pact on Migration a... more The article holistically discusses the alleged new EU return system which the Pact on Migration and Asylum heralds. Absent any impact assessment accompanying the key draft legislative measures and any implementation report regarding the existing legislative instruments following the 2015 refugee-protection crisis, it provides both a substantial and a formal assessment of the proposed reform. A substantial analysis reveals that the two main objectives of the EU return system, namely effectiveness and human rights compliance, are pitted against each other to the detriment of human rights compliance and that effectiveness is questionably narrowed to return rate. Looking at the key components of the return system under the Pact and taking into account past interinstitutional negotiations in the field, it shows that the draft proposals are not conducive to fulfilling these objectives. From a formal standpoint, the article questions the weight of the Commission's proposals on the future outcome of the current negotiations based on their lack of legitimacy.
European Journal of Migration and Law, Vol. 23(2), 2021
The article discusses the recast of the EU Return Directive (2008/115/EC) from the perspective of... more The article discusses the recast of the EU Return Directive (2008/115/EC) from the perspective of effectiveness and fundamental rights protection, as two underlying objectives of the Directive. Relying on the implementation assessment of the Directive carried out by the European Parliamentary Research Service, the article analyses
the way in which Member States have implemented the Directive and how this has impacted the effectiveness of the Directive. If adopted as proposed, will the recast strengthen or further undermine the effectiveness? The assessment focuses on return decision, voluntary departure, entry ban, and detention. It also looks at omissions in
the recast proposal, namely a missed opportunity to remedy the current shortcomings as regards non-returnable people. As the article concludes, the recast proposal will hardly improve the effectiveness of return and may lead to violations of fundamental rights of people in an irregular situation.
International Journal of Law in Context, 2020
The paper discusses the (unsteady) evolution of multilateral processes on migration since the 198... more The paper discusses the (unsteady) evolution of multilateral processes on migration since the 1980s, with a focus on immigration detention as a growing response to migratory movements. It identifies distinct periods leading up to the Global Compact for Migration (GCM). The paper exposes double standards in the treatment of migration at the UN and beyond, connected with states' view of migration as a toxic topic. While the GCM put the issue of migration back on the global agenda, the paper argues against the claim that the GCM is the first-ever intergovernmentally negotiated agreement covering all dimensions of international migration. This description better fits the 1990 Migrant Workers Convention. Furthermore, the paper illustrates how the GCM poses a threat to human rights protection in the area of migration: given its focus on cooperation and a state-led non-binding approach, it may overshadow existing international norms and widely endorsed standards monitored by UN bodies.
Refugee Survey Quarterly, Vol. 40(2), 2021
This article analyses freedom-restricting measures set forth in the Reception Conditions Directiv... more This article analyses freedom-restricting measures set forth in the Reception Conditions Directive and its proposed recast; it does so through the lens of the concept of crimmigration, understood as convergence between criminal and (administra-tive) immigration and asylum law. To tackle "secondary movements" within the European Union (EU), the proposed amendment of the Directive establishes a broad understanding of the risk of absconding, which can justify detention, and expands the restrictions on asylum-seekers' freedom of movement. The article argues that asylum detention under EU law pursues penal law objectives, such as deterrence and retribution. Restriction on freedom of movement, on its part, may amount to systematic surveillance. This observed crimmigration phenomenon is detrimental to migrants and refugees because the incorporation of criminal law objectives into asylum law has an asymmetric form. Although states subject non-citizens to increasingly punitive measures , the administrative label of immigration detention and restrictions on movement allows them to evade due process guarantees, which typically accompany criminal law proceedings. As the article proposes, appropriate interpretation and application of the principles of lawfulness and proportionality with respect to detention and restrictions on freedom of movement will help circumscribe the scope of the phenomenon of crimmigration under the EU asylum legislation.
Journal of Ethnic and Migration Studies, 2020
The article addresses the Schengen-wide entry ban, which is one of
the key measures laid down in ... more The article addresses the Schengen-wide entry ban, which is one of
the key measures laid down in the EU Returns Directive (2008/115/
EC). The entry ban entails that a non-citizen expelled from one member state is barred from returning to the whole Schengen area for up to five years, or longer in case of a threat to public policy or national security. The pan-European validity of the entry ban is ensured by an alert entered in the Schengen Information System (SIS). The alert is a set of personal data registered in the SIS which states may process to identify the person with a view of the refusal of entry. Processing personal data of non-citizens may pose a challenge to the protection of their data. The article assesses data protection rules laid down in the SIS Regulation
(Regulation 1987/2006) and the Regulation which will replace it
(Regulation 2018/1861). As it argues, SIS-specific data protection
safeguards are frequently narrower than rules under data
protection law, including the General Data Protection Regulation
and Council of Europe Convention 108, and fall short of requirements flowing from the right to privacy under the European Convention of Human Rights and EU Charter of Fundamental Rights.
Causes and Consequences of Migrant Criminalization, Kogovšek Šalamon (ed.), 2020
This chapter argues that despite its formal administrative label, pre-removal detention regulated... more This chapter argues that despite its formal administrative label, pre-removal detention regulated under the European Union (EU) Directive 2008/115/EC (hereafter Returns Directive) is not limited to non-punitive purposes. In the context of the EU’s current measures to strengthen the effectiveness of the return policy, the punitive potential of detention-relation provisions of the Directive became flagrant. The underlying rationale behind the current interpretation of the Directive is a policy of deterrence, retribution, and incapacitation. While immigration detention under EU law may be in practice punitive in nature, the protective features that accompany criminal processes are not always assured within immigration procedures, because of their administrative classification. This gap—the crimmigration phenomenon— allows states to benefit from the broader discretion typical of administrative proceedings and exacerbates migrants’ vulnerability. As the chapter concludes, to tackle the crimmigration phenomenon within the EU pre-removal detention regime, arguments should focus on the prohibition of arbitrary detention and the right to an effective remedy, benefiting every detainee.
International Migration, Vol. 57(6), 2019
The article explores how immigration detention is addressed in the Global Compact on Refugees (GC... more The article explores how immigration detention is addressed in the Global Compact on Refugees (GCR) and Global Compact for Safe, Orderly and Regular Migration (GCM) and investigates the potential implications of the compacts on the existing legal framework regulating the use of immigration detention. While Objective 13 of the GCM largely reflects detention-related standards under international human rights law, the GCR makes only scarce references to detention in §60. Overall, the compacts risk inhibiting gradual endorsement of the norm of non-detention of children. On the other hand, they rightly restate the priority for alternatives to detention for adults. States should implement the provisions of the compacts in line with their obligations under international human rights and refugee law. The compacts cannot be used as a pretext to lower domestic detention-related standards or to diminish the validity of the existing framework governing immigration detention.
Challenging Immigration Detention: Academics, Activists and Policy-makers, Flynn and Flynn (eds.), 2017
Silesian Journal of Legal Studies, Vol. 7, Jul 2015
As the International Law Association highlights “[power] entails accountability, that is the duty... more As the International Law Association highlights “[power] entails accountability, that is the duty to account for its exercise.” Against this background, the article focuses on the question of accountability of the European Union (EU) border agency Frontex for potential human rights violations that may occur in the course of its operations. The article aims to challenge the Frontex’ stance that solely states would bear responsibility for any wrongful act. Rather, it is argued here, Frontex may incur responsibility, alongside a wrongdoing state. Shared responsibility or responsibility for complicity that may arise in such circumstances would reflect intertwined acts and powers of various actors involved in Frontex’ operations.
AmeriQuests, Vol. 11(2), Dec 2014
Pre-removal detention is usually considered an administrative measure aimed at the facilitation o... more Pre-removal detention is usually considered an administrative measure aimed at the facilitation of the removal of irregular migrants by preventing them from absconding during removal proceedings. The administrative nature of immigration detention implies that persons subject to this measure do not have access to the fair trial guarantees that criminal detainees are entitled to. However, the assessment of pre-removal detention under European Union and Swiss legislation demonstrates the penal nature of such detention despite its formal administrative classification. The penal nature of immigration detention is most easily revealed by the explicit deterrent—if not punitive—function it is supposed to fulfill in order to force foreigners to cooperate in their own removal procedure. Moreover, this penal nature may also be deducted from the more implicit purpose of immigration detention to punish irregular migrants and asylum seekers for criminal offences. The discrepancy between the administrative label of immigration detention and its punitive nature should be remedied. Arguably, the use of pre-removal detention should be limited to a truly administrative purpose, i.e. for very short periods of time allowing the state to prevent concrete risks of absconding once removal is about to be enforced. Alternatively, if the existing legal framework fails to prevent the use of immigration detention according to disciplinary or punitive functions, immigration detainees should be afforded guarantees comparable to those applied in criminal proceedings.
Oxford Monitor of Forced Migration, Vol. 3(2), Nov 2013
This article provides a critical analysis of immigration detention regime under European Union (E... more This article provides a critical analysis of immigration detention regime under European Union (EU) law. It assesses the relevant provisions of the EU Returns Directive and their domestic implementation in several EU states against the underlying requirement for any deprivation of liberty not to amount to arbitrary detention. Three elements embodied in this requirement are highlighted: the exceptional nature of pre-removal detention, its use as a last resort, and its shortest possible length. The article argues that by using broad terms, the EU Returns Directive falls short of providing for strong safeguards against arbitrary immigration detention. In fact, pre-removal detention imposed in an automatic manner and for lengthy periods is not necessarily incompatible with the EU Returns Directive. Moreover, national authorities may actually use some of its provisions to justify more stringent measures.
Reports by Izabella Majcher
European Network of National Human Rights Institutions: Scoping paper, Jul 2021
Drawing on European NHRIs’ existing activities at borders, the scoping exercise undertaken in thi... more Drawing on European NHRIs’ existing activities at borders, the scoping exercise undertaken in this paper maps key thematic areas in which continued or stronger engagement of NHRIs would enhance the protection of the human rights of migrants and asylum seekers. These areas have been identified based on an assessment of ongoing EU legislative and policy developments in the field of migration and asylum. On the one hand, several elements of the proposed reforms raise concerns in relation to the protection of the human rights of migrants and asylum seekers at borders. On the other hand, they also provide momentum for redefining regional and national approaches to migration towards ones that offer stronger human rights protection.
The key areas identified in this paper include border procedures, detention and reception, returns, and the involvement of EU Agencies (Frontex and EASO/EUAA). Activities that NHRIs could engage in within these areas include: conducting monitoring visits to border areas and places of detention and accommodation of migrants and asylum seekers; collecting testimonies and verifying the files of the people concerned; observing interviews; monitoring return flights; commenting on legislative amendments; enquiring to public authorities about applicable measures at borders; receiving individual complaints (where NHRIs have this mandate); and providing information to and engaging with Frontex and EASO/EUAA mechanisms. Cross-border cooperation with NHRIs from other countries would be beneficial, particularly in the areas of returns and prevention of pushbacks.
To increase the impact of their engagement around border procedures, detention, reception, and returns, NHRIs could cooperate with CSOs and international organisations. Cooperating with CSOs, especially those with a field presence, would be help increase the effectiveness of NHRIs’ actions and provide support for relevant activities of CSOs. Engaging with regional and international actors (EU, CoE, and the UN) would contribute to greater impact of monitoring activities and enhance respect for relevant human rights norms and standards. In its role as a network, ENNHRI could help regional advocacy and facilitate cross-border activities between NHRIs.
This paper serves as a practical, non-exhaustive, guidance for NHRIs. The extent to which NHRIs and ENNHRI will be able to implement the activities identified in this report is dependent on their resources, different mandates, and priorities of NHRIs across Europe.
EuroMed Rights: Return Mania. Mapping policies and practices in the EuroMed Region, Apr 2021
This chapter maps out recent EU legislative and policy measures and some selected Member States’ ... more This chapter maps out recent EU legislative and policy measures and some selected Member States’ practices in the field of return/expulsion adopted or encouraged under the EU’s current disproportionate focus on return. The chapter discusses the 2018 proposal to recast the Return Directive and legislative proposals accompanying the 2020 Pact on Migration and Asylum, notably the border return procedure and return sponsorship mechanism. It points to provisions which, if adopted, may lead to human rights violations while they will not necessarily increase the effectiveness of the return system. The discussion then looks at readmission cooperation with third countries and “safe country” concepts used by the EU and its Member States to swiftly remove people to these countries. Further, Frontex’s increasingly broad return mandate is assessed, alongside risks of human rights violations in that regard. The discussion also points to measures not called removals but which are no less coercive, notably “voluntary” departure when no reasonable alternative exists and push-backs. Next, the chapter outlines current removal monitoring provisions and practices and recently-proposed border monitoring mechanism. The discussion of the return policies and measures is put in the context of human rights norms and standards in the area of return/expulsion. The chapter can be conceived as a reminder for Member States that EU law and policies do not dispense them from their human rights obligations under international and regional law. The chapter ends with several recommendations to the EU, its Member States, the UN, and the CoE bodies.
European Parliamentary Research Service: The Return Directive 2008/115/EC: European Implementation Assessment, Jun 2020
In November 2019, the European Parliament's Committee on Civil Liberties, Justice and Home Affair... more In November 2019, the European Parliament's Committee on Civil Liberties, Justice and Home Affairs (LIBE) launched an implementation report on Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals (the 'Return Directive'). The Return Directive aims at ensuring that the return of non-EU nationals without legal grounds to stay in the EU is carried out effectively, through fair and transparent procedures that fully respect the fundamental rights and dignity of the people concerned. Tineke Strik (Greens/EFA, the Netherlands) was appointed as rapporteur. Implementation reports by European Parliament committees are routinely accompanied by European Implementation Assessments, drawn up by the Ex-Post Evaluation Unit of the European Parliament's Directorate-General for Parliamentary Research Services (EPRS). This EPRS European Implementation Assessment finds several protection gaps and shortcomings regarding the four key measures of the Return Directive – return decision, enforcement of the return decision, entry ban, and detention – which may lead to fundamental rights violations for irregular migrants. Moreover, EU return and readmission policy has increasingly resorted to informal cooperation in the external policy dimension. There have been, and continue to be, rule of law, fundamental rights, budgetary and external affairs implications flowing from the pursuit, conclusion and implementation of EU readmission agreements and agreements having equivalent effect with third countries.
Blogs and Papers by Izabella Majcher
RLI Blog on Refugee Law and Forced Migration, May 2021
Refugees and Exiles (ECRE) and a Refugee Law Initiative Research Affiliate. The views expressed i... more Refugees and Exiles (ECRE) and a Refugee Law Initiative Research Affiliate. The views expressed in this blog post are those of the author and do not necessarily reflect the position of ECRE. The author would like to thank Mariette Grange for her helpful comments on an earlier version of this blog post. Any errors and conclusions remain the author's alone. This blog post forms part of a series of blog posts examining the implementation of the Global Compact for Safe, Orderly and Regular Migration.
RLI Blog on Refugee Law and Forced Migration, May 2021
The views expressed in this blog post are those of the author and do not necessarily reflect the ... more The views expressed in this blog post are those of the author and do not necessarily reflect the position of ECRE. The author would like to thank Mariette Grange for her helpful comments on an earlier version of this blog post. Any errors and conclusions remain the author's alone. This blog post forms part of a series of blog posts examining the implementation of the Global Compact for Safe, Orderly and Regular Migration.
EU Law Analysis, Jan 2021
UNU Institute on Comparative Regional Integration Studies, Jun 2020
This policy brief addresses people’s post-return vulnerabilities and protection needs beyond refo... more This policy brief addresses people’s post-return vulnerabilities and protection needs beyond refoulement and demonstrates that returns can both exacerbate existing, as well as create new vulnerabilities. In Objective 21 of the Global Compact for Migration, states commit to facilitate safe and dignified return and ensure that reintegration of migrants upon return is sustainable. In this respect, the policy brief asks two questions: Which factors exacerbate existing or create new vulnerabilities after return and thus preclude the sustainability of reintegration? What responsibilities emerge from these vulnerabilities for states that implement returns? The brief answers these questions on the basis of fieldwork carried out between 2016 and 2019 with people forcibly returned from European countries. Relying on this empirical material, the policy brief argues that rights-based return policies need more robust vulnerability assessments and more extensive monitoring of people’s access to rights and well-being after return. Return policies are only effective if they are sustainable. Yet, which return trajectories can lead to sustainable reintegration? This is a question which policymakers and practitioners have so far shied away from.
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BOOKS by Izabella Majcher
Articles and Chapters by Izabella Majcher
the way in which Member States have implemented the Directive and how this has impacted the effectiveness of the Directive. If adopted as proposed, will the recast strengthen or further undermine the effectiveness? The assessment focuses on return decision, voluntary departure, entry ban, and detention. It also looks at omissions in
the recast proposal, namely a missed opportunity to remedy the current shortcomings as regards non-returnable people. As the article concludes, the recast proposal will hardly improve the effectiveness of return and may lead to violations of fundamental rights of people in an irregular situation.
the key measures laid down in the EU Returns Directive (2008/115/
EC). The entry ban entails that a non-citizen expelled from one member state is barred from returning to the whole Schengen area for up to five years, or longer in case of a threat to public policy or national security. The pan-European validity of the entry ban is ensured by an alert entered in the Schengen Information System (SIS). The alert is a set of personal data registered in the SIS which states may process to identify the person with a view of the refusal of entry. Processing personal data of non-citizens may pose a challenge to the protection of their data. The article assesses data protection rules laid down in the SIS Regulation
(Regulation 1987/2006) and the Regulation which will replace it
(Regulation 2018/1861). As it argues, SIS-specific data protection
safeguards are frequently narrower than rules under data
protection law, including the General Data Protection Regulation
and Council of Europe Convention 108, and fall short of requirements flowing from the right to privacy under the European Convention of Human Rights and EU Charter of Fundamental Rights.
Reports by Izabella Majcher
The key areas identified in this paper include border procedures, detention and reception, returns, and the involvement of EU Agencies (Frontex and EASO/EUAA). Activities that NHRIs could engage in within these areas include: conducting monitoring visits to border areas and places of detention and accommodation of migrants and asylum seekers; collecting testimonies and verifying the files of the people concerned; observing interviews; monitoring return flights; commenting on legislative amendments; enquiring to public authorities about applicable measures at borders; receiving individual complaints (where NHRIs have this mandate); and providing information to and engaging with Frontex and EASO/EUAA mechanisms. Cross-border cooperation with NHRIs from other countries would be beneficial, particularly in the areas of returns and prevention of pushbacks.
To increase the impact of their engagement around border procedures, detention, reception, and returns, NHRIs could cooperate with CSOs and international organisations. Cooperating with CSOs, especially those with a field presence, would be help increase the effectiveness of NHRIs’ actions and provide support for relevant activities of CSOs. Engaging with regional and international actors (EU, CoE, and the UN) would contribute to greater impact of monitoring activities and enhance respect for relevant human rights norms and standards. In its role as a network, ENNHRI could help regional advocacy and facilitate cross-border activities between NHRIs.
This paper serves as a practical, non-exhaustive, guidance for NHRIs. The extent to which NHRIs and ENNHRI will be able to implement the activities identified in this report is dependent on their resources, different mandates, and priorities of NHRIs across Europe.
Blogs and Papers by Izabella Majcher
the way in which Member States have implemented the Directive and how this has impacted the effectiveness of the Directive. If adopted as proposed, will the recast strengthen or further undermine the effectiveness? The assessment focuses on return decision, voluntary departure, entry ban, and detention. It also looks at omissions in
the recast proposal, namely a missed opportunity to remedy the current shortcomings as regards non-returnable people. As the article concludes, the recast proposal will hardly improve the effectiveness of return and may lead to violations of fundamental rights of people in an irregular situation.
the key measures laid down in the EU Returns Directive (2008/115/
EC). The entry ban entails that a non-citizen expelled from one member state is barred from returning to the whole Schengen area for up to five years, or longer in case of a threat to public policy or national security. The pan-European validity of the entry ban is ensured by an alert entered in the Schengen Information System (SIS). The alert is a set of personal data registered in the SIS which states may process to identify the person with a view of the refusal of entry. Processing personal data of non-citizens may pose a challenge to the protection of their data. The article assesses data protection rules laid down in the SIS Regulation
(Regulation 1987/2006) and the Regulation which will replace it
(Regulation 2018/1861). As it argues, SIS-specific data protection
safeguards are frequently narrower than rules under data
protection law, including the General Data Protection Regulation
and Council of Europe Convention 108, and fall short of requirements flowing from the right to privacy under the European Convention of Human Rights and EU Charter of Fundamental Rights.
The key areas identified in this paper include border procedures, detention and reception, returns, and the involvement of EU Agencies (Frontex and EASO/EUAA). Activities that NHRIs could engage in within these areas include: conducting monitoring visits to border areas and places of detention and accommodation of migrants and asylum seekers; collecting testimonies and verifying the files of the people concerned; observing interviews; monitoring return flights; commenting on legislative amendments; enquiring to public authorities about applicable measures at borders; receiving individual complaints (where NHRIs have this mandate); and providing information to and engaging with Frontex and EASO/EUAA mechanisms. Cross-border cooperation with NHRIs from other countries would be beneficial, particularly in the areas of returns and prevention of pushbacks.
To increase the impact of their engagement around border procedures, detention, reception, and returns, NHRIs could cooperate with CSOs and international organisations. Cooperating with CSOs, especially those with a field presence, would be help increase the effectiveness of NHRIs’ actions and provide support for relevant activities of CSOs. Engaging with regional and international actors (EU, CoE, and the UN) would contribute to greater impact of monitoring activities and enhance respect for relevant human rights norms and standards. In its role as a network, ENNHRI could help regional advocacy and facilitate cross-border activities between NHRIs.
This paper serves as a practical, non-exhaustive, guidance for NHRIs. The extent to which NHRIs and ENNHRI will be able to implement the activities identified in this report is dependent on their resources, different mandates, and priorities of NHRIs across Europe.