@article{2016:pichou:reception_,
title = {Reception or Detention Centres? The detention of migrants and the EU ‘Hotspot’ Approach in the light of the European Convention on Human Rights},
year = {2016},
note = {Although the treatment of aliens by state authorities has been
consistently under the scrutiny of the European Court of Human Rights,
the detention of irregular migrants in reception centres has only
recently been examined by the Court. Given the current refugee and
migration crisis in Europe and the policies implemented by states and
the European Union to address the crisis, it is surprising how little
attention this case law has received. In this article, I analyse the
obligations of European states concerning the reception centres of
migrants and asylum seekers under the European Convention on Human
Rights and I review how these obligations were interpreted by the
Strasbourg Court. Accordingly, the article first analyses the
applicable legal framework of the Convention and then proceeds by
classifying the case law on the issue of detaining aliens. Two main
legal issues arise respectively: First, the criteria for the
establishment of reception centres where migrants can be detained and
the legal basis for the detention of aliens therein. As many states
detain aliens in an attempt to deal with the ongoing migration crisis,
I argue that administrative practices alone, without a statutory
provision or established case law, are insufficient legal bases for
the detention of people at reception centres. Second, whether the
exceptional character of the current crisis may play a role when
adjudicating cases of detention of aliens. The case law suggests that
although the Court takes into consideration the multiple challenges
that states confront, the latter cannot deviate from their obligations
under the convention, using these challenges as an excuse. During the
analysis, I address the distinction between the right to liberty under
Article 5 of the Convention and the right to liberty of movement,
enshrined in Protocol 4, with the aim of investigating whether the
latter may be applicable in cases of detention of aliens. I argue that
under certain conditions the right to liberty of movement may be
applicable in cases of detention of people who enter a member state
irregularly. Finally, the article reviews the EU ‘Hotspot’
approach adopted in 2015 by the European Commission to address
emergencies at the European borders. Although this new policy has yet
to be fully implemented, it poses interesting legal questions
regarding the responsibility of European Union member states in the
light of the European Convention on Human Rights. Despite the
coordinating efforts of the EU to address the crisis, the
responsibility for the conditions at reception centres still lies with
the member states.},
journal = {KritV Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft},
pages = {114--131},
author = {Pichou, Maria},
volume = {99},
number = {2}
}