Solitary confinement in immigration detention

           Immigration detention in the Netherlands

Migrants who do not or no longer have a valid residence permit (‘undocumented migrants’) must leave the country of their own accord according to Dutch law. If they fail to do so, their stay in the Netherlands is unlawful and they may be deported. In order to keep people available for deportation, they may be detained in immigration detention.

Immigration detention in the Netherlands is a prison-like regime (at least for adult men, who are staying at Detention Centre Rotterdam). However, in this prison there are no criminally convicted people, but innocent people who do not possess the right papers. They are not detained on criminal, but on administrative grounds: their detention serves the sole purpose of deportation. Yet, despite this administrative basis, the legal regime for immigration detention is based on the (criminal-law) Penitentiary Principles Act (Pbw).

Detention constitutes a far-reaching government interference with someone’s personal freedom. Hence, there must be good reasons to do so. It is therefore problematic that people who have not committed any crime or are suspected of having done so, are nevertheless detained in a prison-like environment. The Netherlands has been called to account for this by the authoritative Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of the Council of Europe.

Solitary confinement as a disciplinary punishment

The Pbw provides for the possibility of placing incarcerated persons in an isolation cell (or other room). This means that a person is locked up in his or her cell for 23 hours a day. Solitary confinement (or ‘isolation’) involves deprivation of sensory stimuli, loss of autonomy, and severe restriction of activities and contact with others. Solitary confinement is used frequently in Dutch immigration detention as well.

Solitary confinement may be applied as a measure of order and as a disciplinary punishment. In the first case, the purpose of the measure is to restore and maintain order and safety. Often, such a measure is based on medical grounds. In the case of solitary confinement as a disciplinary punishment, there must be culpable behavior, and the imposition of the measure serves a corrective purpose. In practice, for example, solitary confinement is regularly imposed as a disciplinary punishment when someone refuses to be placed in a multiple-person cell. Refusal of a multi-person cell can be punished by two weeks of solitary confinement. After this period, another two weeks of solitary confinement can be imposed. In fact, this situation can be prolonged over and over again. As a result, it occurs that people spend months in solitary confinement. Other reasons for which solitary confinement may be imposed as a punishment include polluting one’s own cell or another area in the detention center, or damaging or destroying government property.

Solitary confinement, and certainly solitary confinement as a punishment do not belong in an administrative law setting such as immigration detention. Solitary confinement is a far-reaching intervention which, especially for vulnerable people, can lead to serious psychological and sometimes physical complaints. Immigration detention contains many vulnerable people, often with a combination of psychological problems, health problems or a history of flight. According to PILP-NJCM, solitary confinement always amounts to a disproportionate punishment in the context of immigration detention, given the potential (very) harmful effects.

New Return and Immigration Detention Act

The bill for the Return and Alien Detention Act (Wtvb), which intends to create a new legal regime that is more in line with the administrative law nature of immigration detention, has been declared ‘controversial’ by the Dutch Parliament. The Wtvb has literally copied the provisions on punitive and orderly measures from the Pbw. The new law will therefore not bring about any improvement regarding the application of solitary confinement in immigration detention.

Complaints procedure

People in immigration detention may submit complaints about conditions at the detention center, including about solitary confinement. In that case, the complaint concerns the director’s decision to place someone in isolation. These complaints are handled by the Supervisory Committee (CvT) and on appeal by the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ) (“the penitentiary court”). Meldpunt Vreemdelingendetentie regularly assists people in these complaints proceedings.

What does PILP-NJCM do?

>>> Direct link to important documents: amicus curiae

In September 2020, Amnesty International, Meldpunt Vreemdelingendetentie of Stichting Landelijk Ongedocumenteerden Steunpunt (LOS) and Dokters van de Wereld published a report on solitary confinement in immigration detention. The report shows that, despite the undisputed knowledge about the risks of solitary confinement, legislation, policy and practice to prevent solitary confinement in immigration detention have not or barely improved. In fact, the use of solitary confinement in immigration detention has actually increased in recent years.

In response to this report, PILP-NJCM organized a brainstorm to discuss the possibilities of a legal follow-up to the report. Subsequently, lawyers from Stibbe, through Pro Bono Connect, wrote a pre-litigation advice on the matter. This legal advice showed that a civil procedure would probably result in inadmissibility, because the Dutch Supreme Court has ruled in its Paspoort verdict that the civil court – also for public interest groups – is only accessible if there is no other “sufficiently safeguarded specific legal procedure” available. The penitentiary court, however, provides such a specific legal procedure.

Therefore, PILP-NJCM has written a model complaint and an amicus curiae for the complaints procedure at the CvT and RSJ. PILP-NJCM did this in collaboration with Amnesty International, Meldpunt Vreemdelingendetentie, lawyer mr. Frans-Willem Verbaas and Stibbe.

The model complaint addresses the legitimacy of the application of the solitary confinement provisions of the Pbw. An incarcerated person may argue that the general rules underlying a decision of the director concerning him/her are contrary to higher law. If this is the case, the CvT or RSJ may declare the general rule non-binding or not applicable.

In the amicus curiae, PILP-NJCM explains why we are of the opinion that the application of the solitary confinement provisions of the Pbw, within the context of immigration detention, is in violation of higher law, in particular Articles 3 and 8 of the ECHR. We hope that the penitentiary court is willing to rule on the legitimacy of solitary confinement in immigration detention.

The amicus curiae can be found here.

Updates

In 2021, PILP-NJCM drafted a model complaint and amicus curiae letter for the complaint procedure before the penitentiary court. The letter can be found here. The model complaint is used by the Meldpunt Vreemdelingendetentie.

In 2021, PILP-NJCM organized a brainstorm and lawyers from Stibbe wrote a pre-litigation advice.

In 2020, the organizations listed below published an updated version of their report because legislation, policy, and practice to prevent solitary confinement in immigration detention have not improved, despite the undisputed knowledge about the risks thereof. This report shows that the use of solitary confinement in immigration detention has actually increased in recent years.

In 2015, Stichting LOS and Amnesty International, together with Dokters van de Wereld, published the report ‘Solitary confinement in immigration detention’. This report concluded that solitary confinement can pose serious health risks. Isolation must therefore be avoided wherever possible. The Dutch government has indicated on several occasions that it is aware of the potential damage to health and has promised to make efforts to reduce solitary confinement wherever possible.