ICJ and IDC concerned at Council of Europe’s draft immigration rules

Europe and Central Asia
Document Type: Legal Submission
Date: 2017

The ICJ and the International Detention Coalition (IDC) have presented their observations on the draft European rules for the administrative detention of migrants.

In their submissions, the two human rights organizations noted that the current detention practices in most Council of Europe member States raise serious questions as to their compatibility with human rights law.

They stressed that, under international human rights law, immigration detention must always be an exceptional measure of last resort in full respect of the norms of necessity, proportionality and non-discrimination.

The ICJ and IDC expressed concern that the current draft document fails to adequately distinguish between criminal and administrative immigration detention regimes.

In doing so, the document risks normalizing unlawful detention practices and codifying prison standards that are wholly inappropriate in the context of migration.

The two organizations submitted that, as a general rule, persons in situations of particular vulnerability should never be detained merely for the purposes of enforcing immigration control.

Finally they called on the drafting Committee to prioritize alternative measures to detention.

Europe-ImmigrationDetentionRules-JointSubmission-ICJIDC-ENG-2017 (download the joint submission)


The Council of Europe’s European Committee on Legal Co-Operation is currently drafting a set of European rules for the administrative detention of migrants.

This is a codifying exercise on a set of immigration detention rules based on existing international and regional human rights standards relating to the conditions of detention of migrants. The stated objective of the draft instrument is twofold:

  • Protect migrants held in administrative detention by providing them with individual guarantees on the conditions of their administrative detention (i.e. detention not based on a criminal conviction);
  • Provide guidance to both national authorities responsible for the closed centres and persons working closely with migrants.

The process to draft this codifying instrument started in May 2016.

The European Committee on Legal Co- Operation launched a written consultation procedure to involve civil society and key actors in the elaboration process of this codifying instrument.

This submission is the reply of the ICJ and the IDC to this written consultation.


Massimo Frigo, ICJ Legal Adviser, t: +41 22 979 3805 ; e: massimo.frigo(a)icj.org


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