In the context of migration, all basic principles relating to the fundamental rights and treatment of migrants held in administrative detention including the right to legal remedies, the rules of detention procedures, communication with legal advisers, counsellors and persons representing international and non-governmental organisations, material conditions of accommodation, personal development, access to healthcare and measures to ensure order, safety and the protection of migrants in detention.
1. Basic principles related to the treatment of migrants in detention were laid down e.g. by the Council of Europe’s European Committee on Legal Cooperation (CDCJ) in its Codifying instrument of European rules on the administrative detention of migrants, May 2017 or in the UNHCR Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention, 2012.
2. In the EU context, Directive 2013/33/EU (Recast Reception Conditions Directive) and Directive 2008/115/EC (Return Directive) include standards (guarantees) and rules (conditions) regarding the detention of applicants for international protection , ensuring that their fundamental rights are fully respected.
3. Guarantees for detained applicants for international protection are laid down in Art. 9 of Directive 2013/33/EU resp. Art. 15 of Directive 2008/115/EC, such as e.g. detention for the shortest period possible and only as long as the grounds for detention are applicable, detention must be ordered in writing by judicial or administrative authorities, speedy judicial review of the lawfulness of detention, information on reasons for detention and the procedures laid down in national law for challenging the detention order, access to free legal assistance and representation.
4. Art.10 of Directive 2013/33/EU resp. Art. 16 of Directive 2008/115/EC refer to conditions of detention. Detention of migrants shall take place as a rule in specialised detention facilities . Where an EU Member State cannot provide accommodation in a specialised detention facility and is obliged to resort to prison accommodation, migrants shall be kept separated from ordinary prisoners. EU Member States shall ensure that family members, legal advisers or counselors and persons representing relevant international and non-governmental organisations such the United Nations High Commissioner for Refugees (UNHCR) have the possibility to communicate with and visit applicants. Applicants in detention shall be systematically provided with information which explains the rules applied in the facility and sets out their rights and obligations in a language which they understand.
5. According to Art. 11 of Directive 2013/33/EU resp. Art.17 of Directive 2008/115/EC particular attention shall be paid to the situation of vulnerable persons. Unaccompanied minors and families with minors shall only be detained as a measure of last resort and for the shortest appropriate period of time.