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Asylum and Immigration Detention: the Protection of Fundamental Rights in the European Union

The course is aimed at providing the audience with knowledge and skills on a very sensitive topic, especially since many migrants moving from third countries to Member States are in vulnerable conditions. That happens particularly to third country nationals who seek (international) protection on the “territory” of the European Union.

The problem is that domestic practice at European level has been showing that many third country nationals undergo fundamental rights breaches by national authorities of the host Member States. Accordingly, this topic deserves to be dedicated a high degree of attention by legal practitioners, with an emphasis on domestic judges.

In particular, the course seeks to offer guidelines to enable Member States’ judges to apply relevant EU rules in a consistent way. To achieve this goal, the course focuses on the core rights that have to be recognized and guaranteed to third country nationals when their freedom is restricted for reasons concerning their presence in the host Member State. More precisely, the course serves to identify and clarify the main EU law provisions in this context and to assess them under the lens of the European Court of Justice (ECJ).

Therefore, although many EU secondary law provisions are discussed vis à vis the practice of the Member States, the course revolves around the application of the European Charter of Fundamental Rights in the cases concerned. However, with a view to fully capturing the essence of the Charter, consideration will also be given to the standards of protection ensured by the European Convention on Human Rights by means of the European Court of Human Rights, as its case law is most of the times of paramount importance for the ECJ when addressing fundamental rights.

 

Course Outline

The structure of the course reflects a hypothetical, yet very likely, path that a third country national (TCN) would probably experience when approaching an EU Member State (MS) for purposes of obtaining international protection. Depending on the outcome of the request for granting international protection, different scenarios may unfold.

Week 1 provides key definition concerning asylum seekers and irregular migrants as well as essential safeguards enshrined in the European Charter of Fundamental Rights and in the European Convention of Human Rights regarding their rights, such as non-refoulement and the right to asylum. At the end of Week 1, you will be acquainted with the concept of international protection at the international and EU level and with the main protection instruments that EU Member States (MSs) have deployed to grant protection to people in need.

Week 2 will start addressing the topic of asylum and immigration detention, beginning from its definition. At the end of this week, you will be able to mark the differences between asylum and immigration detention and the divergent set of laws that apply to each case. You will learn on which respective grounds detention can be ordeded for these categories of people. In this week, you will become familiar with the scope and the powers of judicial authorities and with the extent of judicial review.

Week 3 illustrates alternative measures of detention that must be always preferred to detention where possible. It also explores remedies and procedural safeguards that the EU Charter and EU law provide to detainees in case of asylum or immigration detention. After this week, you will gain a strong knowledge on those fundamental rights derived from Article 47 EU Charter and on the conditions under which a decision of removal or a voluntary departure can be issued.

Week 4 concerns vulnerable groups and the particular attention that national and judicial authorities must give to their special needs. After having deeply described both the features of their vulnerability and the special provisions that apply to them, we will lead your attention to the particular case of victims of trafficking in human beings. In this regard, you will learn the key features of this transnational phenomenon, its drastic implications on the victims, how international and EU law deal with this crime, what services and protection are offered to the victims, and what efforts are still needed.

Week 5 finally provides you with a rich list of fundamental rights that asylum seekers and TCNs are entitled to under the EU Charter, while showing their correlation with the European Convention on Human Rights. Most importantly, you will learn how to enforce human rights by triggering the application of the EU Charter.

Lecturers and Experts

The e-NACT courses feature a group of academics, judges, and other practitioners passionate for fundamental rights and willing to spread the knowledge about them both within their professional networks and beyond. As the courses build on the trans-national trainings conducted within the e-NACT project, we invited also experts that delivered these residential training to enrichen the online courses with their perspectives and experience.

 

 

Learning Outcomes

The primary aim of this course is to provide legal practitioners with specific yet wide knowledge on the protection of fundamental rights of detainees in the European Union, giving particular attention to third country nationals and asylum seekers kept in detention. The cornerstone of this course is the application of the European Charter of Fundamental Rights as well as EU secondary law to cases concerning third country nationals with or without a legal status who have been issued a detention order.

To reach this aim, the learners will gain an in-depth understanding of the different sets of laws, conditions and standard of treatment in detention concerning third country nationals and asylum seekers respectively; the fundamental rights enshrined in the European Charter of Fundamental Rights, in the European Convention on Human Rights and their transposition in EU secondary legislations that conversely have to be equally granted regardless of their legal status; while dedicating particular attention to vulnerable people and their specific needs.

At the end of this course, learners will be familiar with the concept of detention, its main features, procedural safeguards, and the essential role that judicial authorities can play, while raising their awareness on recent policy developments and practices they should keep an eye on.

The overall Project

e-learning National Active Charter Training(e-NACT) Project is a DG Justice supported project providing for a training methodology and training activities that, coupled with the expertise of the trainers involved, foster the emergence and consolidation of a common culture of fundamental rights. By discussing with academics and with foreign colleagues their difficulties or good practices with respect to the application of the EU Charter, legal practitioners will deepen their understanding and equip themselves with new instruments and notions to use it effectively.For this purpose, e-NACT will offer systematic, interdisciplinary, interconnected and combined residential and e-learning training on five fundamental rights guaranteed in the EU Charter.

The following courses are offered within this project:

  1. Crash course on the application of the EU Charter of Fundamental Rights (1 week)
  2. Freedom of expression (5 weeks)
  3. Fundamental Social rights in the European Union (5 weeks)
  4. Children’s rights in the EU Charter (5 weeks)
  5. La protection des droits des enfants dans le cadre de la Charte des droits fondamentaux de l'Union européenne (5 semaines)
  6. The European Charter of Fundamental Rights and Data Protection in the European legal framework (5 weeks)
  7. Asylum and Immigration Detention: The Protection of Fundamental Rights in the European Union (5 weeks)

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Marco Borraccetti

Associate Professor of European Union Law at the Università di Bologna

Marco Borraccetti holds a Ph.D. in EU Law from the University of Bologna; he is Associate Professor of European Union Law at the Università di Bologna, Department of Political and Social Science, where he teaches EU Institutional Law and EU Immigration Law.

Since July 2018 he is co-director of the European Regional MA Programme in Democracy and Human Rights in South East Europe where he teaches Migration and Human Rights. He is the director of MigLab-Studi sulle Migrazioni, a center of the Department of Political and Social Sciences, University of Bologna and he is member of the Editorial board of Diritto Immigrazione Cittadinanza (Journal on Migration Law Citizenship).

His current main research interests include migration, trafficking in human beings and human rights; the right to water and the EU development cooperation; the EU external borders policy; the judicial protection of fundamental rights in the EU.

He is member of different Bologna teams working on migration issues: GLOBUS, a H2020 research project that critically examines the European Union’s contribution to global justice; CONREP, Comparative Network on Refugee Externalisation Policies; ESPON 2020 Programme ECTG, on Territorial and Urban Potentials Connected to Migration and Refugee Flows; AMIF, Arts Together, Integrating migrant children at schools through artistic expression.

Marco was Visiting Scholar at University of Illinois at Urbana-Champaign, European Union Center (2015), and Visiting Professor at Université Libre de Bruxelles – Institut d’Etudes Européennes (2011).

Federico Ferri

Research fellow in EU Law at the UNIBO Department of Legal Studies

Federico Ferri holds a PhD in European Law from the Universities of Bologna (UNIBO) and Strasbourg (2015) and a Specializing Masters in Human Rights and Humanitarian Intervention (UNIBO, 2011). He is research fellow in EU Law at the UNIBO Department of Legal Studies.

Until September 2019 he was Adjunct Professor of EU Law and Tutor of International Law at the UNIBO Faculty of Political Science. He Federico is also a civil attorney in the municipality of Bologna and collaborates with companies, institutions and reviews in Italy and abroad.

Federico’s research interests are vast, even if he mainly deals with EU migration policies and fundamental rights. In this regard, he has published widely and he cooperates with peer-reviewed journals, such as Immigrazione.it and Diritto, immigrazione e cittadinanza. He also contributes to multiple projects co-funded by the EU.

Chiara Scissa

Chiara Scissa holds a Bachelor in Political Science and a Master with honours in International Cooperation and Protection of Human Rights from the University of Bologna.

Currently, she is involved in the development of research projects on refugee and forced migration issues in collaboration with the University of Milano Bicocca and the University of Bologna. Her main research interests encompass the analysis of new drivers of forced migration, such as environmental crimes, and the feasibility to expand the system of international protection available at the international and EU level to address the current threats to people’s enjoyment of human rights.

Currently, she is involved in the development of research projects on refugee and forced migration issues in collaboration with the University of Milano Bicocca and the University of Bologna. Her main research interests encompass the analysis of new drivers of forced migration, such as environmental crimes, and the feasibility to expand the system of international protection available at the international and EU level to address the current threats to people’s enjoyment of human rights.

Currently, she is collaborating with the University of Bologna on projects addressing multidisciplinary aspects of migration.

e-NACT MOOC on Asylum and Immigration Detention: the Protection of Fundamental Rights in the European Union - https://edx.gchumanrights.org/courses/course-v1:gchumanrights+e-nact-5+2020/about
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