Environmental Health Rights and Concepts of Vulnerability of Immigration Detainees in Europe Before and Beyond COVID-19

Abstract

The global COVID-19 health emergency has radically changed detention spaces, by heightening state and provider obligations to provide humane conditions and protect those detained against disease and subsequent ill-health. Using a socio-legal lens, this policy and practice note focuses broadly on the balance of European immigration detention regulations, and the actual conditions and treatment of immigrant detainees, putting an emphasis on developments before and after COVID-19. The special protections afforded to detainees assessed as vulnerable is unclear in the Global Compact for Safe, Orderly and Regular Migration. While cognisant of aspects of legal positivism by outlining relevant legal provisions and extant European Court of Human Rights (ECtHR) jurisprudence where conditions of detention have violated Article 3, a socio-legal argument is presented around state obligations to protect the health of all immigration detainees; the challenges in using simplistic/categorical definitions of vulnerability; and the imperatives to broaden considerations to include health vulnerability in the context of contagion and future pandemics. By analogy extant ECtHR jurisprudence on the rights of prisoners relating to right to health and disease mitigation (human immune-deficiency, tuberculosis) may offer additional protections. Broad consideration of environmental health factors in light of threats of disease in detention spaces warrant further consideration when establishing the threshold of the severity of conditions and when assessing detainee vulnerability (not limited to age, gender or health status). A public health rights-based argument can shape effective immigration detention policy reform by enhancing protective parameters based on broad definitions of health vulnerability within immigration detention spaces.