Introduction

How has COVID affecting the detention of irregular migrants? What justifications are being offered? And how are their human rights protected? The response of the Italian authorities to the Khalifa v Italy judgment of the Grand Chamber of the European Court of Human Rights (App no. 16483/12), 15 December 2016, shows that changing public policy priorities can lead to new risks of unlawful detention and breaches of human rights. There are lessons to be learned across Europe from that response.

While the UK may have left the EU, it is still part of the Council of Europe and shares a common international catalogue of human rights with other counties in the European region in the form of the European Convention on Human Rights (‘ECHR’), as well a common supervisory court in the form of the European Court of Human Rights. The poor treatment of irregular migrants leading to continuing human rights violations in one European country provides an example of what to guard against in others. 

The judgment of the European Court of Human Rights in Khalifa v Italy, which found breaches of human rights (including in respect of the right to liberty) in Italy’s treatment of migrants, and the subsequent want of adequate measures to address the defects identified in the judgment, demonstrates how slow the process of meaningful change can be. That the COVID pandemic appears to have provided fresh opportunities for human rights violations, including as regards the right to liberty, is a warning, that an applicant’s success at the European Court of Human Rights may not lead to meaningful change, not least given developing nature of public policy priorities.

Khalifa v Italy

The facts in the Khalifa case emerged against the backcloth of the Arab Spring in Tunisia and Libya. In 2011 this led to an increase in trans-Mediterranean migration to Italy by boat. The case concerned three Tunisian citizens who left Tunisia on board rudimentary vessels heading for the Italian coast. Their vessels were intercepted by the Italian coastguard, which escorted them to a port on the island of Lampedusa. Once there, they were transferred to an Early Reception and Aid Centre (Centro di Soccorso e Prima Accoglienza (‘CSPA’). Later, they were flown to Palermo in Sicily and transferred to ships (one to the Vincent with 190 other people, the other two to the Audace with 150 other people) that were moored in the harbour. After a few days, they were taken to Palermo airport pending their removal to Tunisia

As regards the right to liberty (Article 5 ECHR), the first question arose was whether there was deprivation of liberty and, if so, whether it was lawful. Article 5(1) provides:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

…

(f)  the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”

The European Court of Human Rights found that that the provisions applying to the detention of irregular migrants were lacking in precision, leading to de facto deprivation of liberty. It also held that placement in a CSPA is not subject to judicial supervision and so cannot, even in the context of a migration crisis, be compatible with the aim of Article 5 to ensure that no one should be deprived of his or her liberty in an arbitrary fashion. The deprivation of liberty did not satisfy the general principle of legal certainty and was not compatible with the aim of protecting the individual against arbitrariness. It was not ‘lawful’ within the meaning of Article 5(1) ECHR.

In addition, the Court also found that there was a violation of Article 5(2) ECHR, which provides that:

“2.  Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”

It also found a violation of Article 5(4) ECHR, which provides that:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

As regards access to an effective remedy (Article 13 EHCR) in order to challenge the conditions of detention (whether they constituted inhuman or degrading treatment contrary to Article 3 ECHR), the Court found that the Italian Government had not indicated any remedies by which those detained could have complained about the conditions in which they were held in the CSPA or on the ships Vincent and Audace. Any appeal to a Justice of the Peace against the refusal of entry to Italy would have served only to challenge the lawfulness of their removal. Further, in any event, those orders were issued only at the end of their period of confinement. Accordingly, there had been a violation of Article 13 ECHR taken together with Article 3 ECHR.

What happened next?

As a result of the judgment, the Italian government presented Actions Plans to the Council of Europe’s Committee of Ministers as to how it proposed to future violations of the right to liberty in similar circumstances. The Committee of Ministers had to wrestle with whether these plans were adequate in the context of new developments.

As part of an EU initiative, from 2015 ‘hotspots’ were established in Italy for the reception, identification, registration, and fingerprinting of irregular migrants and asylum-seekers, underpinned by Law 46 of 13 April 2017.  Notwithstanding the use of this and other legislative decrees and laws, the Italian Government has struggled to demonstrate the lawful basis for the use of hotspots and to show how it has addressed the scope for human rights violations identified in the Khalifa judgment. While strict laws were made to provide a legal basis for the detention of irregular migrants, see Decree 113 of 4 October 2018  (made when far-right politician Matteo Salvini was Interior Minister), recent developments show a more liberal approach being taken with greater emphasis on reception and integration. Notwithstanding that, serious problems remain.

The Current Position and the Significance of the COVID Pandemic

According to the Italian Association for Juridical Studies on Immigration (ASGI) and A Buon Diritto Onlus (an Italian human rights organisation) irregular migrants continue to be arbitrarily deprived of their liberty in hotspots without any clear legal basis, without a maximum detention period, without proper information, and in a manner inconsistent with the need to protect them against arbitrariness.

As regards the impact of COVID, they record that since March 2020 hotspots have been used as temporary places of quarantine and have so used for longer periods than required by the COVID regulations. Those persons so treated have undergone a period of quarantine in the hotspot before being transferred to other places used for precautionary quarantine, such as ships. It is the judgment of these organisations that the people so treated are unlawfully deprived of their liberty. If irregular migrants are being deprived of liberty as a quarantine measure, this raises the worrying possibility that Italy may seek to rely on the need to control infection to avoid a charge of violating human rights. Article 5(1) ECHR provides that detention may be justified in cases concerning:

“(e) the lawful detention of persons for the prevention of the spreading of infectious diseases…;”

While such a justification may not prosper on closer examination, any deprivation of liberty on account of the need to control COVID, adds to risks of unlawful detention and inhuman and degrading treatment.

Further, the organisations continue to have concerns about access to effective remedies, noting that de facto detention, the absence of proper decisions indicating the means of appeal, and the difficulties in effective access to lawyers within the hotspot centres, prevent an effective guarantee of the right of defence and access to information.

In the result, it can be seen that in the time since the Khalifa v Italy judgment, Italy has not taken adequate general measures to avoid future occurrence of the human rights violations identified. Meanwhile, public policy priorities have moved on. The Arab Spring recedes into the past (though journeys by sea in insecure vessels continue in numbers) and the need to control COVID provides a new and additional context in which deprivations of liberty may occur.