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 under Dutch law. If they do not, their stay in the Netherlands is illegal, and they can be deported from the country. To keep people available for deportation, they can be held in immigration detention (or immigration detention).

Alien detention in the Netherlands is much like a prison (at least for adult males, who stay at Detention Center Rotterdam). However, this prison does not hold criminally convicted people, but innocent people who do not have the right papers. They are detained not on criminal but on administrative grounds: their detention serves the purpose of deportation. But despite this administrative law basis, the legal regime of alien detention is based on the criminal Penitentiary Principles Act (Pbw).

Detention constitutes a very far-reaching government interference in people’s personal freedom. There must be good reasons for this. It is therefore wrong that people who have not committed or are suspected of having committed any crime are still held in a prison-like environment. The authoritative Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment of the Council of Europe has reprimanded the Netherlands on this matter.

Isolation as a disciplinary punishment

The Pbw provides for the possibility of confining detainees in an isolation cell (or other room) in isolation. This means that a person is locked in his or her cell for 23 hours a day. Isolation involves deprivation of sensory stimuli, loss of autonomy, and severe restriction of activities and contact with others. It is also often used in immigration detention.

Isolation can 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. There is often a medical reason for this. With isolation as a disciplinary punishment, there must be culpable behavior, and the imposition of the measure serves a corrective purpose. In practice, for example, isolation is regularly imposed as a disciplinary punishment when someone refuses placement in a multi-person cell. Refusal of a multi-person cell may be punished by two weeks of isolation. After this period, another two weeks of isolation may be imposed. In fact, this situation can be extended each time. As a result, it happens that people spend months in isolation. Other reasons for which isolation is imposed as a punishment in practice include polluting one’s own cell or another room in the detention center, or damaging or destroying Kingdom property.

Isolation, and certainly isolation as a punishment, has no place in an administrative setting such as immigration detention. Isolation is very drastic and, especially in vulnerable people, can lead to serious psychological and sometimes physical symptoms. There are many vulnerable people in immigration detention, often with a combination of psychological problems, health problems or an intense history of flight. According to PILP, given the potential (very) harmful effects, isolation is always a disproportionate punishment in the context of immigration detention.

New law on return and immigration detention

Currently, the House of Representatives has declared the proposed Law on Return and Alien Detention (Wtvb) controversial. This new law should create a legally new regime that better reflects the administrative law nature of immigration detention. However, the Wtvb literally copied the provisions on punitive and order measures from the Pbw. Thus, the new law will not improve the application of isolation in immigration detention.

Complaints procedure

People in immigration detention can file complaints about conditions in the detention center, including isolation. The complaint is then about the director’s decision to place someone in isolation. These complaints are dealt with by the Supervisory Committee (CvT) and on appeal to the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ) (the penitentiary judge). The Immigration Detention Hotline regularly assists people in these proceedings.

What does PILP do?

In September 2020, Amnesty International, the Immigration Detention Hotline of the National Undocumented Support Center (LOS) Foundation and Doctors of the World published a report on isolation in immigration detention. That report shows that, despite undisputed knowledge about the risks of isolation, legislation, policy and practice to prevent isolation in immigration detention have not improved much, if at all. In fact, the use of isolation in immigration detention has increased in recent years.

In response to this report, PILP organized a brainstorming session to discuss the possibilities of a legal follow-up to the report. Then, through Pro Bono Connect, lawyers from Stibbe wrote a litigation opinion on the matter. The litigation advice showed that civil proceedings would probably lead to inadmissibility, because the Supreme Court ruled in the Passport judgment that the way to the civil court – also for interest groups – is only open if there is no other “special legal procedure with sufficient guarantees.” The penitentiary judge is such a legal route.

PILP has therefore written a model complaint and an amicus curiae (a kind of opinion letter) for the complaints procedure at the CvT and RSJ. PILP did this in cooperation with Amnesty International, the Complaints Bureau for Detention of Foreigners, lawyer Frans-Willem Verbaas and lawyers from Stibbe.

The complaint raises the legality of the application of the isolation provisions of the Pbw. An inmate may in fact 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 disapply it.

In the amicus curiae, PILP explains why we believe that the application of the isolation provisions of the Pbw, within the frameworks of detention of aliens, are contrary to higher law, in particular Articles 3 and 8 ECHR. We hope that the penitentiary judge will want to rule on the legality of isolation in immigration detention.

PILP’s amicus curiae brief can be found here.

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Solitary confinement in immigration detention