COVID-19 IMPACTS ON IMMIGRATION DETENTION: GLOBAL RESPONSES SPAIN: ALTERNATIVES TO IMMIGRATION DETENTION ARE THE ONLY WAY OUT Spain has led the way in releasing migrants from immigration detention facilities during the COVID-19 pandemic. And it did so due to the everpresent pressure of civil society organizations, who counted with the Spanish Ombudsman as a powerful ally. The government and the competent judges reacted and emptied all detention facilities within weeks, but bearing in mind that it was an exceptional and temporary measure compelled by the emergency situation. That is, the release of all migrant detainees is solely a consequence of the pandemic, but never part of a strategy aiming to reduce or end detention. This has not been a priority of the Spanish authorities, who even announced the construction of a new detention facility some months before the coronavirus struck the country. Now that the country is temporarily free from immigration detention, it is time to take this opportunity to implement alternatives. IMMIGRATION DETENTION IN SPAIN International law mandates that detention must only be used as a last resort. European Union law, by virtue of the Return Directive1, asserts the same principle. It is unclear whether the Spanish legislation complies with international or EU law. Spain’s Immigration Act includes detention as an interim measure within a list that includes different alternatives on the same footing. Thus, the law does not state that detention can only be applied if no other less coercive means can be used. On top of that, according to the same law, detention must be used when removals cannot be enforced within the first three days in cases of “devolución” 2. In practice, however, detention in these cases is not always enforced if there is no prospective removal, and third-country nationals are usually sent to reception programs run by civil society organizations, such as Fundación Cepaim, in coordination with the Ministry of Inclusion, Social Security and Migrations. In the so-called “expulsión”, detention may be used, and it is actually enforced over the different alternatives available. Research shows that, in practice, alternatives are rarely implemented and therefore, detention is the only measure applied. Measures such as surrendering passports and documents are not used as alternatives per se, as they are only implemented once migrants must be released when the maximum period of 60 days in detention has been reached. 3 In Spain, immigration detention is therefore one of the measures that competent judges have at their disposal to ensure deportations. No other reason justifies the detention of third country nationals in the so-called Foreigners Internment Centers (Centro de Internamiento de Extranjeros, also known as CIE). After the maximum period of 60 days, migrants must be released and cannot be detained again for the same reason. 1 2 3 4 5 6 7 8 DETENTION DURING THE PANDEMIC: THE RESPONSE BY CIVIL SOCIETY AND THE STATE Civil society organizations have been continuously reporting and warning about the heinous conditions inside the CIE,4 and even the Spanish Ombudsman denounced the shameful circumstances surrounding immigration detention. 5 When the state of alarm was declared by the government on 14 March 2020, the voices against immigration detention for reasons relating to the poor, inadequate and unsafe situation of detainees grew stronger as the pandemic posed life-threatening consequences to anyone inside. News about migrant detainees and workers who tested positive proved civil society right about the CIE as being completely unsuited to prevent the spread of the virus within their walls. Moreover, detention had lost its legal basis altogether as it could no longer ensure deportations. By the time Spain closed its borders on 18 March, over 60 countries had already announced some kind of travel restriction to people arriving from Spain. By the beginning of April, the number of countries which either banned their entry or canceled air and maritime connections with Spain rose to over 150.6 Therefore, travel was severely restricted, pending removals were canceled, and prospective ones were ruled out. For that reason, migrant detainees had to be released. And they were. Not as early as civil society organizations and activists demanded, but within six weeks, every CIE was empty for the first time in history. Judges are the competent authorities to issue both detention and release orders of third-country nationals. They detain migrants when public prosecutors ask for such interim measures. Detentions stopped soon, as the Public Prosecutor’s Office issued an internal note on 31 March ordering public prosecutors across the country to refrain from seeking the detention of migrants who were to be expelled from the country.7 The number of migrant detainees started to drop as judges found that detention could not be sustained as an interim measure to ensure deportations that no longer were feasible. In addition, one judge also announced the release of migrants from one particular CIE on humanitarian grounds, 8 as its facilities were not fit to prevent the spread of COVID-19 and to keep detainees safe from any threat to public health, just as social organizations and the Spanish Ombudsman had previously concluded on several occasions. The judge further noted that the conditions inside the CIE favored the transmission of the virus and that he based his decision solely on reasons relating to public health, public order and humanitarian grounds. That is, even if removals could be enforced, migrant detainees had to be released. Directive 2008/115/EC, also known as the Return Directive sets forth the standards for returning third-country nationals to their home countries. Article 15 states that “unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process”. The Spanish law establishes a separate disciplinary procedure for third-country nationals. The term devolución refers to the removal order issued against a person who has been intercepted while entering Spain’s territory without an authorization. This is the case of migrants who are intercepted at sea or at the border. On the other hand, expulsión is used to describe the procedure initiated against a third-country national who is found on the territory without a permit to stay in the country. European Commission (2013). Evaluation on the application of the Return Directive (2008/115/EC). Final Report. European Commission – DG Home Affairs, p. 31-32. For a better understanding of life inside a CIE, see reports by the Jesuit Migrant Service in Spain. The latest one, Informe CIE 2019: Diez años mirando a otro lado, is available at: https://bit.ly/3ic0sbj. Defensor del Pueblo (2019). Informe anual 2018. Mecanismo Nacional de Prevención. Available at: https://bit.ly/3haLxwT. Las Provincias (16 April 2020). Los países que prohíben la entrada a españoles por la crisis del coronavirus. Available at: https://bit.ly/3byV7bG. Fiscalía General del Estado (2020). Nota interna de extranjería núm. 1/2020. Del internamiento cautelar administrativo de extranjeros; de la sustitución total de las penas privativas de libertad por la expulsión; y de la sustitución del proceso penal por la expulsión. Available at: https://bit.ly/2R0ZaEe. Juzgado de Instrucción nº. 8 (Las Palmas de Gran Canaria). Procedure 455/2020, 31 March 2020. Available at: https://bit.ly/3c6wDqm. idcoalition.org | westernsydney.edu.au/hadri 49