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Abstract

In 2021, new reception centres for asylum seekers were established in Greece. These centres are remotely located, highly surveillanced and asylum seekers living there are subjected to stringent conditions, including a curfew, that obliges them to be in the centre between 8 pm. and 8 am. Such curfews are a traditional method of social control and fit a broader trend of excluding certain categories of people from public space. This article analyses the gap between the lived experiences of asylum seekers staying in these centres and the protection provided by human rights law. It shows how these centres are generally experienced as prisons by its inhabitants, whereas they are not qualified as such in human rights law. The article uses the notion of ‘subsistence exchange contracts’ to bridge this gap. The article argues that if this notion would be used for the legal qualification of deprivation of liberty, state power would be more effectively constrained, which is crucial for the rule of law.

Keywords

Curfews reception of asylum seekers deprivation of liberty coercion Article 5 ECHR

Introduction

Curfews are measures that restrict individuals to their homes during specified times, usually in the evening and night. They have a long history and are a traditional method of imposing social control (see, e.g. Collins and Kearns, 2001; Freitas, 1996; Hazen and Brank, 2018; Jordan, 1993; Smith, 2012), as they ‘seek to mould the behaviour of targeted individuals’ (Johnsen et al., 2018). Throughout history, as Freitas notes, in addition to being used as an emergency measure, for example during wartime or pandemics, ‘curfews have been enacted when powerful factions of society perceive the imminent loss of control over less powerful citizens. Each time the members of a group lacking any substantial power and rights become the scapegoats’ (Freitas, 1996: 219). Similarly, Jordan observes that the ‘curfew could be viewed as an explicit attempt to impose some form of social control over the group that is least likely to succeed’ (Jordan, 1993). Curfews form part of a trend in liberal democracies to increasingly exclude people from public space, in order to deal with (future) crime, anti-social behaviour and political protest (Beckett and Herbert, 2009; Moeckli, 2016; Sylvestre et al., 2020). A specific characteristic of curfews is that they usually prohibit the mere presence of certain categories of people in any part of public space, independent of their behaviour and on a permanent basis (Moeckli, 2016: 102–114).

In the US for example, prior to the abolition of slavery in 1865, curfews prohibited enslaved persons from being on the streets after a certain time, and as from the mid-1890s, more and more cities enacted juvenile curfews, prohibiting children from being on the streets after a certain time. These latter curfews were imposed as a means to protect and control unsupervised and neglected juveniles, and, during the 20th century, to combat juvenile (gang) crimes (Freitas, 1996; Hazen and Brank, 2018). Also in Europe, juvenile curfews have become increasingly common (Moeckli, 2016: 87). For example, Iceland has juvenile curfews to reduce teen drinking (VOA News Learning English, 2019), and in France juvenile curfews may be adopted by prefectures or municipalities if the public place present a risk to the health, safety, education and mental development of a young person during night time (Federal Association of Child and Youth Protection, 2012). Curfews are also used to target other categories of people. For example, curfews for persons who were not vaccinated for COVID-19, enacted in some German districts in 2021 (Mercopress, 2021), and curfews enacted in towns that are mainly Kurdish by the Turkish authorities (VOA News, 2016).

This article deals with another prominent current example: the curfew imposed on asylum seekers who are contained in reception centres for asylum seekers on Greek islands. As the EU entirely finances these centres, they serve as a blueprint for the future of the reception of asylum seekers in the EU. This is in line with the newly adopted recast of the Reception Conditions Directive (Directive (EU) 2024/1346), which introduces ‘more targeted restrictions to the applicants’ freedom of movement and strict consequences when such restrictions are not complied with’ (European Commission, 2016), and with the new Asylum Procedures Regulation (Regulation (EU) 2024/1348) with its broader reliance on border procedures and containment of asylum seekers at the border (Wessels, 2023). Critical scrutiny of the measures in these centres is, therefore, important.

The curfew enacted for asylum seekers contained in these centres entails that they cannot leave the centres between 8 pm and 8 am. There are three relevant differences between this curfew and the earlier mentioned examples. First of all its long duration (12 h). Secondly, and more significantly, the fact that this curfew is combined with the obligation to stay in a collective reception centre (instead of one's own private home) in which far-reaching surveillance measures are employed. Thirdly, the fact that this curfew is imposed on an island, from which asylum seekers have no possibility to (safely) leave towards the Greek mainland without permission of the Greek authorities. See for an analysis of such residence restrictions for asylum seekers as a form of (legal) social control also the contributions of Leroy (2024) and Ruiz Ramos (2024b) in this issue.

This article examines the gap between the lived experiences of asylum seekers subjected to this curfew, geographical restriction and surveillance on the one hand, and the legal qualification of these measures on the other. Based on existing empirical research into the Greek reception centres, it shows how its residents generally experience them as prisons. In addition, it shows how European courts and human rights institutions do not qualify the confinement of asylum seekers in reception centres where they can leave during the day as deprivation of liberty or detention. This has important consequences, as this means that the particular safeguards for people deprived of their liberty, as laid down in, for example, Article 5 of the European Convention on Human Rights (ECHR), do not apply.

Article 5 ECHR provides the right to liberty and is considered by the European Court of Human Rights (ECtHR), together with articles 2 and 3, as one of the most fundamental human rights and of paramount importance (see e.g. Medvedyev and others v. France, 2010, para 76). It contains habeas corpus and other important procedural safeguards that do not explicitly apply under other human rights provisions. Habeas corpus is different from regular judicial review of state action, as it requires speedy access to a judge; the sole objective of the procedure is to release from unlawful detention; and the burden of proof lies on the authorities (Okpaluba and Nwafor, 2021: 55–67). In addition, Article 5 has no general limitation clause (different from, e.g. the right to freedom of movement or the right to respect for private life), so it is not possible to derogate from these procedural safeguards based on a balancing exercise between the interest of the state and those of the individual. The habeas corpus safeguard has been described as of ‘critical importance to the maintenance of the rule of law’ (Farrell, 2016: 223–253), as it is an ‘important check against an inordinate concentration of power in the executive branch’ (Clark, 2007) and as playing ‘an important role in maintaining the relationship between the executive branch and the law within the domestic legal framework’ (Farrell, 2016: 223–253). While other human rights do provide protection against containment measures that cannot be qualified as detention (e.g. the right to freedom of movement and the right to respect for private life, see Ruiz Ramos, 2024a; Slingenberg, 2022; Wessels, 2023), the relevance and exceptional nature of the protection provided by the right to liberty means that it is highly important to critically discuss the material scope of this right.

This article argues how the interpretation of the material scope of Article 5 ECHR by human rights institutions and courts fits a standard (libertarian) concept of coercion. The article introduces the notion of ‘subsistence exchange contracts’, to develop a broader interpretation of the concept of ‘deprivation of liberty’ that can bridge the gap between asylum seekers’ lived experiences and the law. It argues that such a broader interpretation is necessary in order to provide adequate protection against infringements of liberty that are just as severe as in cases of standard coercion. Such an interpretation would not mean that every situation in which an asylum seeker is contained in a semi-open reception centre entails a deprivation of liberty, but it does mean that the applicability of the right to liberty should not be automatically and categorically rejected in such situations. Instead, other possible relevant factors should be taken into account when establishing whether there is a deprivation of liberty, such as the duration of the confinement, the procedural protection and the nature and degree of the actual restrictions imposed on the inhabitants. Finally, this article argues that if this interpretation were applied to the reception centres in Greece, the conclusion should be that, based on the accumulation of surveillance and control measures and the specific context, asylum seekers living in these centres are deprived of their liberty. Consequently, the confinement there should have a proper legal basis in domestic law and habeas corpus safeguards should be provided. While others have highlighted the need to act in conformity with general rule of law standards (Ruiz Ramos, 2024b) or to revise the current human rights framework (Cornelisse, 2022) in order to keep up with practices of containment at European borders, this article does not argue for (extra) procedural protection against restrictions of liberty, but argues, informed by asylum seekers’ lived experiences and moral philosophy, that these containment practices could, under certain circumstances, be legally qualified as full swing deprivations of liberty.

After discussing the context and the lived experiences of asylum seekers subjected to the measures applied in the Greek reception centres, this article examines case law of the European Court of Human Rights about Article 5 ECHR as regards the qualification of a situation as deprivation of liberty. It will also pay some attention to the concept of detention as used by the Court of Justice of the European Union and human rights organizations. Finally, it discusses the concept of ‘subsistence exchange contracts’, as introduced by Elizabeth Ashford, as an alternative way to assess the voluntary nature of subjecting to conditions that interfere with negative rights, and applies it to the measures imposed on asylum seekers in the Greek reception centres.

The EU Reception and Identification Centres in Greece

This is the shock. You think you will find a very nice situation, but everything is the opposite. It's prison. They say this is Europe, this is freedom – but it is not like this.

(Tasneem, a woman from Sudan, explaining her Artwork in Amnesty International, 2024)

For many years, asylum seekers on Greek islands have been living in deplorable conditions. Reception centres were severely overcrowded, and many had to live in makeshift camps without access to adequate sanitary conditions, health care and enough food and clothing. The Council of Europe Commissioner for Human Rights described the conditions, after a visit to Lesvos, Samos and Corinth in 2019, as ‘desperate’ and ‘abysmal’ and the situation as not having ‘anything to do with the reception of asylum seekers’. Instead, it has become ‘a struggle for survival’ (Commissioner for Human Rights, 2019). Also Human Rights Watch has criticized the poor living conditions of asylum seekers on the Greek islands for years (e.g. Human Rights Watch, 2018, 2021). Since asylum seekers on the islands are, with limited exceptions, not allowed to leave the islands and transfer to the Greek main land (Asylum Information Database, 2024), asylum seekers have had to live in these dire conditions for months or even years.

On 8 and 9 September 2020, a number of fires entirely destroyed the Moria reception centre on the island of Lesvos. This, finally, triggered a concrete response by the European Commission. With the famous statement of ‘no more Moria's’ by commissioner Ylva Johansson, the Commission promised a fresh start and an end to unacceptable living conditions such as in the (former) Moria camp (European Commission, 2020). To this end, in addition to financing the improvement of the current temporary camp on Lesvos, the Commission has signed grant agreements for the construction of new reception centres in Lesvos, Chios, Samos, Kos and Leros (European Commission, 2021).

In 2021, three new ‘multi-purpose reception and identification centres’ were constructed (on Samos, Kos and Leros). In Greece they are called ‘Closed Controlled Access Centres’ (CCACs). These centres are completely financed by the EU and designed in collaboration between the Commission, EU agencies and the Greek government. According to the Commission, these centres ensure adequate living conditions and dignified reception conditions (European Commission, 2022). In November 2022, the existing facilities in Lesvos and Chios were converted into CCACs, while in both the islands, the construction of two new EU funded centres has been planned (Asylum Information Database, 2024). These centres are the only places where asylum seekers can receive basic assistance; there is hardly any alternative accommodation available on the islands (Refugee Support Aegean and PRO ASYL, 2023). Also Aida reports that the few alternative reception centres that existed on the islands have ‘gradually given way to the new Closed-Controlled island facilities in 2021’ (Asylum Information Database, 2023: 166).

The CCACs on Samos consist of prefabricated containers of 25 m² and a capacity of four people each, with air-conditioning, heating and Wi-Fi access. The centre has playgrounds, sports courts, restaurants, shared kitchens and sanitary facilities and a computer room. Hence, the living conditions are clearly improved as compared to the previous makeshift camps. However, the camp is surrounded by a double security fence equipped with turnstiles, magnetic gates and X-ray machines and guarded by 50 uniformed personnel 24 h a day. It uses a two-factor access control system (identity and fingerprint) and a closed surveillance system that uses “smart” software to give notifications and images to the Control Centre in Athens. This is implemented by two surveillance systems: Hyperion and Centaur. Hyperion monitors movement in and out of the camps and Centaur deploys behavioural analysis algorithms and transmits CCTV and drone footage to the Control Centre. In September 2022, two investigative networks (BIRN and Solomon) revealed that these systems were implemented without basic data protection safeguards required under EU law (BalkanInsight, 2022), which led to critical questions submitted by some members of the European Parliament to the Commission (European Parliament, 2022). Residents (including children) are subjected to bag and body check every time they return to the camp (Refugee Support Aegean and PRO ASYL, 2023).

In addition, the gates are closed between 8 p.m. and 8 a.m. (Asylum Information Database, 2024).¹ The consequence of not complying with the curfew for two consecutive times is termination of residence and of the material reception conditions provided in the centre. No procedural safeguards are established for this withdrawal.² Further, it has been reported that entry and exit are allowed only at scheduled times (Greek Council for refugees and Oxfam, 2022). Since 2022, residents are not allowed to leave the centres at all for a maximum of 25 days from their entry, to conduct reception and identification procedures. This is based on Article 40 of the Greek Asylum Act (Amnesty International, 2024).

Leaving the centre after this first identification period is further complicated by the location of the centres. The Samos centre is about 9 km from the nearest town, Vathi. A return bus ticket costs €3.20, an amount that exceeds the daily financial aid of €2.50 for each refugee, or €1.75 for members of a family of four (InfoMigrants, 2021). The other centres are located remotely as well, with poor connections to cities (Asylum Information Database, 2024) and, sometimes, particularly scarce availability of public transport (Refugee Support Aegean and PRO ASYL, 2023).

Different organizations have conducted empirical research into the living conditions in the CCACs. From the interviews they conducted, it appears that residents generally experience these centres as a prison or detention-like situation. Already before the centre was opened, asylum seekers living in a makeshift camp on Samos indicated that they did not want to be relocated to the new camp, as they will be locked there ‘as prisoners’ (EU Observer, 2021; Trouw, 2021).

After the centre on Samos was opened, Samos Advocacy Collective and Europe Must Act conducted six semi-structured interviews with residents of the Samos CCAC. In these interviews, respondents shared their experiences of feeling imprisoned and linked that to the different surveillance and control measures (2021: 2–4):

It scares you. It's like a prison, with all the fences. I fled from suffering to come here to a prison.

My feeling is that I’m in prison. This is what I feel. [There is] too much control around, cameras, and drones sometimes.

There (is) a lot of guards, and security. And if you’re going out, when you come back: body check, or the bag. Any place that you want to enter you find a private security person. Before you go there, they have to search [body-check] you. Search you well.

In addition, the respondents talked about the impossibility of leaving the centre, expressing the involuntary nature of their stay there:

Now we can’t leave, we’re trapped. It's never been good from a mental health perspective, but after two years being here and now going into the third year [in Samos] it's tiring.

Before, when I’m feeling so bad, I could come in the city, and talk with somebody. At least walking [on] the beach. But there, no…you have to be [in the camp]. And if you want to go in the city, you [need] the money. If you don’t have any money, then you cannot get here.

Also Médecins Sans Frontières (MSF) conducted 25 semi-structured interviews with MSF patients and staff living and working in a CCAC in 2021 (Médecins Sans Frontières, 2021). In the report, MSF stressed the restrictive character of the CCACs and their ability to contain and detain people arriving in Europe. One of their interviewees said:

Europe is a country of freedom, but why are you taking our freedom from us? You want us to be in prison. Being in that new camp, we will not be considered as refugees but as someone who committed a crime. If I did a crime I go to prison, but I did not commit any crime I am just a refugee.

Similarly, in a joint statement, various NGOs critique ‘the prison-like structure, [that] combined with a heavy security presence and stringent entry/exit conditions, creates a pervasive feeling of imprisonment [for its residents]’ (Refugees International, 2022). The statement contains the following testimony of one of the residents of the Samos CCAC:

Living in the camp [CCAC] on Samos is a very difficult experience. They shouldn’t even give it the name ‘camp’; in my opinion it is a prison – there is no difference…

In 2023, a report was published by ‘I Have Rights’, a non-profit law clinic on Samos (I Have Rights, 2023). For this report, testimonies were collected from May to June 2023 through semi-structured interviews with people who resided in the CCAC in 2023. Again, the testimonies show how this centre is experienced as a prison:

It is very difficult for us in the camp; very, very difficult. The camp is a prison.

We live like prisoners in the camp.

Even in my country, I have never been in a prison like this place. Our freedom is limited. It's a place we call ‘the next African prison’. Minds are destroyed. Mentally, psychological illness is killing people in this camp. People lost lives, lost babies, lost families. We came here because we needed protection. We expected a house, not a prison.

Everytime you come inside or outside they check you. Even inside the camp to go to the doctor or reception, they search you. What kind of life is this?

Likewise, the NGOs Refugee Support Aegean (RSA) and PRO ASYL conclude in 2023 that ‘the new structures were heralded as open accommodation structures, providing better conditions and security, but are actually more akin to prisons’, since asylum seekers living in the CCACs ‘are living under increased control, surveillance and repression’ (Refugee Support Aegean and PRO ASYL, 2023).

Accordingly, empirical research carried out since the opening of the CCACs by different organizations and in different years consistently includes testimony by residents of the CCACs that describe the centres as prisons. Residents refer to the high level of security, the regular checks and controls and the impossibility of leaving the centre. While the European Commission underlines the open character of the centres and argues that fences are only necessary to ensure security and safety of residents and staff,³ residents and NGO's underline the interferences with residents’ autonomy and freedom. The next section will analyse the legal framework as regards such interferences with personal liberty.

Deprivation of Liberty in Human Rights Law

Research cited above showed how the Greek reception centres are experienced by their inhabitants as prisons. This raises the question whether they are also legally qualified as such. Does the curfew measure, combined with the variety of serious surveillance measures and the impossibility to leave the island on which the centres are located, amount to a deprivation of liberty within the meaning of Article 5 ECHR? This section analyses case law of the ECtHR in order to examine how this Court would answer that question. Relevant case law has been selected on the basis of a text search in HUDOC, the Courts’ database⁴, and analysed using ‘classical case law analysis’ (Gerards et al., 2023). The section ends with comparing that to the concept of detention as used by other institutions.

The fundamental nature of Article 5 ECHR is often underlined by the ECtHR. For example, in the Grand Chamber judgment in Buzadji v. the Republic of Moldova, the ECtHR held (para 84):

Article 5 of the Convention is, together with Articles 2, 3 and 4, in the first rank of the fundamental rights that protect the physical security of the individual (…), and as such its importance is paramount.

This paramount importance is visible in three strands of reasoning that, according to the Court, run through its case law on Article 5 ECHR:

[T]he exhaustive nature of the exceptions, which must be interpreted strictly (…) and which do not allow for the broad range of justifications under other provisions (Articles 8 to 11 of the Convention in particular); the repeated emphasis on the lawfulness of the detention, both procedural and substantive, requiring scrupulous adherence to the rule of law (…); and the importance of the promptness or speediness of the requisite judicial controls (under Article 5 §§ 3 and 4) (…).

Because of the strict and exhaustive nature of the exceptions (contrary to other ECHR provisions) and the emphasis on the lawfulness of the detention and the promptness of judicial control, it is relevant to examine the applicability of Article 5 ECHR to the measures imposed on asylum seekers in the Greek reception centres, even though these measures could also be examined in relation to other rights laid down in the Convention (primarily the right to respect for private life in Article 8 and the right to freedom of movement in Article 2 of Protocol 4; Ruiz Ramos, 2024a; Slingenberg, 2022; Wessels, 2023).

In addition, if the confinement in the Greek reception centres can be qualified as deprivation of liberty, the safeguards laid down in EU law for detention would apply. This would mean, for example, that the deprivation of liberty can no longer be imposed as a general rule on all newly arrived asylum seekers, but that an individual assessment is required (Article 8(2) Directive 2013/33/EU); that the detention should be ordered in writing (Article 9 (2) Directive 2013/33/EU); that there should be speedy judicial review of the lawfulness of the detention (Article 9(3) Directive 2013/33/EU); repetition of that review at reasonable intervals of time (Article 9(5) Directive 2013/33/EU); and access to free legal assistance and representation (Article 9(6) Directive 2013/33/EU). Hence, these safeguards further complement the procedural safeguards laid down in Article 5 ECHR.

As the situation of asylum seekers in reception centres is not entirely similar to cases of classic arrest and detention – they are, after all, allowed to leave the centres every day – the question needs to be addressed whether this situation entails deprivation of liberty or a mere restriction on liberty. In answering that question, the ECtHR generally holds that the difference between deprivation of liberty and restrictions on liberty of movement ‘is merely one of degree or intensity, and not one of nature or substance’. In order to determine whether someone has been deprived of his liberty, ‘the starting-point must be his specific situation and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question’ (Stanev v Bulgaria 2012: para 115).

In the 2019 Grand Chamber cases of Ilias and Ahmed v. Hungary and Z.A. and others v. Russia, both decided on the same day, the Court (re)formulated the relevant criteria for determining the distinction between a restriction on liberty of movement and deprivation of liberty ‘in the context of confinement of foreigners in airport transit zones and reception centres for the identification and registration of migrants’. In this context, the approach must be ‘practical and realistic’, according to the Court, and must recognize the States’ ‘right, subject to their international obligations, to control their borders and to take measures against foreigners circumventing restrictions on immigration’ (Ilias and Ahmed v. Hungary, 2019: para 213). The relevant factors as regards the confinement of migrants are:

the applicants’ individual situation and their choices;

the applicable legal regime of the respective country and its purpose

the relevant duration, especially in the light of the purpose and the procedural protection enjoyed by applicants pending the events; and

the nature and degree of the actual restrictions imposed on or experienced by the applicants. (para 217)

As regards the first factor, the Court found it relevant that applicants entered a centre of their own initiative, with the aim of seeking asylum. ‘While this fact in itself does not exclude the possibility of the applicants finding themselves in a situation of de facto deprivation of liberty after having entered, the Court considers that it is a relevant consideration, to be looked at in the light of all other circumstances of the case’ (para 220). As regards the second and third factors, the Court mainly emphasized the importance of procedural rights and safeguards against excessive waiting periods and the presence of a domestic legal regulation limiting the length of stay at the centre (para 227). For examining the fourth factor, the Court referred to the size of the area and the manner in which it was controlled (para 232), as well as the possibility to leave the centre (paras 234–248).

Even though the Court formulated these factors as relevant for cases of both confinement to transit zones and confinement to reception centres for the identification and registration of migrants, in its case law the Court does not adopt the same approach in these two contexts.

Confinement in transit zones is characterized by centres that are only open on one site. Migrants are not allowed to leave the centre to enter the territory of the host state, but they are allowed to leave the centre to return to their country of origin or to enter a third state. In these cases, the Court addresses the question whether the possibility to leave the transit zone is merely theoretical or not (Amuur v. France, 1996). The Ilias and Ahmed case was about the Röszke transit zone, situated on Hungarian territory at the border between Serbia and Hungary. In this case, the Court adopted a rather strict approach, and disregarded important legal obstacles to enter the third state, and, therefore, to actually leave the centre. It concluded that the applicants could walk into Serbian territory and the legal and practical obstacles preventing them from doing so ‘did not have the effect of making the applicants’ stay in the transit zone involuntary from the standpoint of Article 5 and, consequently, could not trigger, of itself, the applicability of that provision’.⁵ The conclusion was different in the case of Z.A. and others, which was about a transit zone at an airport (the Sheremetyevo Airport in Moscow). The Court distinguished this case from land border transit zones (para 154), and concluded that (para 156):

having regard in particular to the lack of any domestic legal provisions fixing the maximum duration of the applicants’ stay, the largely irregular character of the applicants’ stay in the Sheremetyevo airport transit zone, the excessive duration of such stay and considerable delays in domestic examination of the applicants’ asylum claims, the characteristics of the area in which the applicants were held and the control to which they were subjected during the relevant period of time and the fact that the applicants had no practical possibility of leaving the zone, the applicants were deprived of their liberty within the meaning of Article 5.

In many later cases about confinement in the Hungarian Röszke transit zone, the Court changed its position. The Court still emphasized that the applicants could have left the transit zone in the direction of Serbia at any time and that their fears about insufficient access to asylum procedures in Serbia did not have the effect of making the applicants’ stay in the transit zone involuntary from the standpoint of Article 5. However, in these cases, the Court concluded that having regard to the sum of all the other conditions, ‘in particular to the lack of any domestic legal provisions fixing the maximum duration of the applicants’ stay, the excessive duration of that stay and the considerable delays in the domestic examination of the applicants’ asylum claims, as well as the conditions in which the applicants were held during the relevant period’ there was a situation of de facto deprivation of liberty.⁶

As regards confinement in reception centres that are not transit centres, the case law is different. If these centres are partially open, that is, if migrants can leave the centre into the territory of the host state for a couple of hours a day, the Court, without discussing any other criteria, simply concludes that there is no deprivation of liberty.⁷ This is only different if migrants need written permission to leave the centre, that can be arbitrarily denied (Nur Ahmed and others v. Ukraine, 2020).

So, in a number of cases, applicants complained about the freedom restrictions in the Vial reception centre, located at the Greek island of Chios. In these cases, the applicants were issued with decisions forcing them not to leave the island and to stay in the reception centre. This centre was, however, at a certain point transformed from a closed to a semi-open centre, which meant that the applicants could leave during the day but had to return during the night. The Court merely ruled that ‘à partir de cette dernière date, ils ne faisaient l’objet que d’une simple restriction de mouvement’ and concluded that Article 5 did not apply (J.R. and others v. Greece, 2018: para 86; O.S.A. and others v. Greece, 2019: para 43; Kaak and others v. Greece, 2019: para 89).

This approach was repeated after the new formulation of the relevant factors for confinement of migrants in Ilias and Ahmed and Z.A. and others. In the case of Alissa v. Romaine, the applicants (beneficiaries of international protection) were placed in a centre from which they could not leave between 10 pm and 6 am. After referring to the case of Ilias and Ahmed, the Court held that the case had most in common with the case of J.R., and, again, merely observed that this placement ‘était une simple restriction de mouvement’ and no deprivation of liberty within the meaning of Article 5 ECHR (Alissa v. Romaine, 2019).

Accordingly, if it is possible to leave the centre during the day, having to return to it every night does not constitute deprivation of liberty, according to the ECtHR. The CJEU seems to adopt a similar concept of detention. In the case of FMS and others (C-924/19 PPU and C-925/19 PPU), the CJEU defined detention as (paras 229-231):

an obligation imposed on a third-country national to remain permanently in a transit zone the perimeter of which is restricted and closed, within which that national's movements are limited and monitored, and which he or she cannot legally leave voluntarily, in any direction whatsoever.

Hence, a real possibility to leave the centre, albeit temporarily, is a decisive factor that prevents classification as detention and deprivation of liberty. This seems also to be the opinion of the European Fundamental Rights Agency. In its ‘twelve points for protection-sensitive and fundamental rights-compliant planning and design of initial-reception facilities’ (European Union Agency for Fundamental Rights, 2011) it states that:

Unless deprivation of liberty is justified in an individual case under the Reception Conditions Directive 2013/33/EU, asylum applicants should be allowed to leave the facility and return to it, when possible facilitated through public transport.

Human rights organizations like Amnesty only qualify the situation in the new camp in Samos as detention for those categories of asylum seekers that were, temporarily, not allowed to leave the centre at all (Amnesty International, 2021, 2024). Consequently, by simply allowing asylum seekers to leave during the day, the procedural safeguards and the limited number of accepted grounds connected to a deprivation of liberty do not apply, even if the centre looks like a prison and is experienced as such by its inhabitants. In the next section I will argue for a somewhat broader conception of detention, on the basis of the concept of ‘subsistence exchange contracts’.

Subsistence Exchange Contracts

The concept of subsistence exchange contracts has been introduced by Elizabeth Ashford (Ashford, 2015), influenced by the writings of Henry Shue. Ashford deals with the human right to subsistence from a moral philosophical point of view. She uses the notion of subsistence exchange contracts to argue that we ought to take the right to subsistence seriously. A subsistence exchange contract is defined by her as the situation in which destitute individuals agree to severely harmful treatment, or forgoing their negative human rights, in exchange for subsistence. According to her, such ‘contracts’ pose a threat to the enjoyment of other rights ‘that is just as severe as the threat posed by extreme standard coercion’.

An example of extreme standard coercion would be holding someone at gunpoint in order to make him/her do something. This qualifies as coercion as it is a threat that proposes to make its recipient worse off than (s)he would have been otherwise, which is the definition of a standard (libertarian) concept of coercion (Anderson, 2023). To explain the concept of subsistence exchange contracts, Ashford uses Shue's example of a torture contract. This is a contract a destitute individual enters into with a sadistic millionaire, in which (s)he forgoes her/his right against torture in exchange for subsistence. Since such a contract does not involve the threat of harm, but rather increases the range of options of the individual, it is possible to argue that the situation does not involve coercion, or, at least, not a severe threat to the enjoyment of a negative human right. This argument relies on the fact that the proposer of such a contract does not wrongfully introduce the situation of destitution,⁸ but, instead, provides the individual with a way out of it. Put differently, the destitute individual agrees to the contract because (s)he gets something out of it, so (s)he chooses to waive or renounce the right not to be tortured in order to receive something of value, for example, food or shelter, in exchange.

The question whether offers can, under certain circumstances, be classified as coercive has been subject to debate amongst philosophers for many years (summarized, e.g. in: Anderson, 2023; Kiener, 2020). Ashford, however, argues that classifying such a contract as coercion is unnecessary and, moreover, liable to be misleading. It can be misleading because it may lead to a ‘moral focus on the wrongfulness of the behavior of the people offering the subsistence exchange contracts, by labeling them as coercers’ (Ashford, 2015: 522). The core threat to the range of options of the individual that is subjected to a subsistence exchange contract is, however, independent of the proposer, according to Ashford:

In cases of standard coercion, the threat that the coercion poses to enjoyment of other rights arises from the coercer's posing a specific threat of harm to the victim unless the victim agrees to forgo another right. By contrast, the threat that destitution poses to the enjoyment of other rights lies with the fact that the existing plight of the destitute is already completely unsustainable. If forgoing another right is the only available opportunity for obtaining subsistence, then the choice not to forgo the right, which will lead to the continuation of the status quo, is an unsustainable option. (Ashford, 2015: 527)

Ashford argues that regardless of whether or not subsistence exchange contracts are classified as coercion, the threat they pose to the enjoyment of negative rights is just as severe as that posed by extreme standard coercion. The threat is just as severe, since the decision to accept such a contract is just as non-voluntary. The key issue for assessing whether a choice is voluntary is whether it is made only because of the ineligibility of the alternative options. With ineligible options, Ashford means those that are not choice-worthy. In cases of extreme coercion, the threatened harm is so severe that the option of refusing is unsustainable – ‘not in the sense that it is beyond human capacity to endure, but in the sense that anyone would have a desperate and ever-pressing desire to avoid it’.

A destitute individual agrees to a subsistence exchange contract only because the only available alternative is inadequate subsistence, which is unsustainable in this respect as well. So, independent of who or what causes the destitution (e.g. natural calamity, general poverty, or action by an agent aimed to realize the predicament), what matters is that refusing the conditions attached to the provision of subsistence is an unsustainable option. Just as in cases of extreme standard coercion, the option of refusing is entirely unsustainable. That is the reason why, according to Ashford, the threat to the enjoyment of other rights is just as severe as the threat posed by extreme standard coercion.

The difference between cases of standard coercion and cases of a subsistence exchange contract could clarify the case law of the ECtHR and other institutions about the interpretation of the concept of deprivation of liberty. In their line of interpretation, the impossibility to leave a centre must be caused by the authorities, by either locking the doors (at their side of the territory) or withholding permission to leave. If there is an actual possibility to leave the centre during the day, migrants are not deprived of their liberty, since they are not coerced to stay in the centre. This interpretation makes sense if coercion is seen as a necessary ingredient of a deprivation of liberty (Allen, 2009). Providing reception to destitute asylum seekers in highly surveillanced centres under the condition of complying with a curfew does not necessarily involve coercion under the standard approach. After all, the state provides a way out of their otherwise destitute situation (and did not create the destitute situation in order to create harm). Since asylum seekers get something in return (food, shelter) for subjecting themselves to the freedom restricting conditions, these restrictions are not severe, they are a ‘simple restriction de mouvement’. In that interpretation, residents of the Greek CCACs are not deprived of their liberty.

If, however, we assess the situation of residents of the Greek CCACs from the perspective of subsistence exchange contracts, we could arrive at a different conclusion. Asylum seekers arriving at one of the Greek islands are usually entirely dependent on the government for meeting their basic needs. During the first six months of the asylum procedure, asylum seekers in Greece are not allowed to work. After that period, access to the labour market was seriously hampered by the economic situation in Greece and administrative obstacles to obtaining necessary documents and opening bank accounts (Asylum Information Database, 2024). In addition, there is hardly any alternative housing available on the islands and they cannot leave the islands. Seen in that perspective, asylum seekers’ decision to subject to the surveillance and the curfew in the CCACs is just as involuntary as in extreme cases of standard coercion, as the alternative, that is, refusing to do that, is entirely unsustainable. That would, after all, imply a situation of severe destitution (if they stay on the islands), or forgoing their fundamental right to asylum and a fair procedure (if they leave the islands without permission). Hence, if we focus on the voluntariness of the individual's choice, instead of on the wrongfulness of the behaviour of the state, as argued by Ashford, it turns out that the threat posed to the enjoyment of a negative right (i.e. in this case, the right to liberty), is just as severe as in the case of standard coercion.

This interpretation better fits asylum seekers’ experiences, as documented in the numerous research reports discussed above. The general experience of being in a prison can be explained by the fundamental involuntary character of their stay there, even if staying there is a way out of their otherwise destitute situation. In addition, this interpretation would entail that the containment measures in the Greek centres can amount to deprivation of liberty and, consequently, that they need to comply with the conditions and habeas corpus safeguard resulting from the fundamental right to liberty. This significantly constrains the power of the state.

Conclusion

Asylum seekers living in the Greek CCACs are subjected to severe surveillance and control measures, including CCTV, barbed wire fences, body searches and an extensive curfew. From empirical research it appears that asylum seekers experience living in these CCACs as living in a prison. This article employed a case law analysis to show that because of the semi-open character of these centres, human rights law does, however, not qualify living in such centres as a deprivation of liberty, as a result of which important (habeas corpus) safeguards do not apply.

This article presents the notion of ‘subsistence exchange contracts’, as developed by Elizabeth Ashford, as an alternative way to assess the interferences with asylum seekers’ liberty. If we focus on the involuntariness of asylum seekers’ choices, instead of on the wrongfulness of the behaviour of the state, it turns out that the threat posed to their right to liberty by the containment measures in the Greek centres is just as severe as in the case of standard coercion. That does not mean that staying in a semi-open centre is exactly the same as staying in a fully closed centre. However, if, based on the unsustainability of the alternative, staying in such a centre is just as involuntary as staying in a closed centre, then the same kind of legal protection needs to be available against such severe interferences with the right to liberty.

To be sure, I do not argue that every stay in a semi-open centre amounts to detention or deprivation of liberty. However, we could use the notion of subsistence exchange contracts to argue that the semi-open character of a centre should not automatically disqualify the situation as detention or deprivation of liberty. Taking into account the involuntary character of asylum seekers’ return to and stay in such centres every evening and night, the other criteria for establishing a deprivation of liberty should be assessed, similar to cases about transit centres. Accordingly, if complying with a curfew in a centre can be qualified as a subsistence exchange contract, because asylum seekers trade away their freedom in return for basic subsistence, then account needs to be taken of other relevant criteria for establishing a deprivation of liberty, such as the duration of the confinement to the centre and the procedural protection (e.g. whether domestic law specifies a maximum duration) and the nature and degree of the actual restrictions imposed on or experienced by the applicants (e.g. size of the area and the manner in which it was controlled). In light of the continuous and intense supervision and control (using CCTV, X-ray, fingerprints, barbed wire and a lot of security staff) of the residents of the new Greek camps, their isolated location, the impossibility of leaving the islands and the absence of a maximum duration of confinement to these camps, the sum of all these conditions could in that case very well point towards the conclusion that the situation should be qualified as deprivation of liberty.

As discussed in the introduction, curfews are often used to control certain categories of people, and fit the broader trend of excluding persons from public space. An important question is what kind of legal protection is available against such a measure of social control. This article shows that for answering that question, account must be taken of the entire context of the measure. If curfews are enacted as part of a containment policy that confines people in collective accommodation centres, the right to liberty could provide important legal protection. If, as argued in this article, the right to liberty applies to the containment measures, it would mean that such measures must be based on one of the limited number of acceptable grounds for a deprivation of liberty as laid down in Article 5 ECHR; they need to have a proper domestic legal basis (which, as the contributions in this issue by Leroy (2024) and Ruiz Ramos (2024b) show, requires a detailed and in-depth analysis of the domestic legal framework); and there should be prompt access to a judge for every individual subjected to the measures. In addition, the partly more far-reaching procedural safeguards laid down in EU law for the detention of asylum seekers would apply. That would not mean that such measures are necessarily unlawful, but it would more effectively constrain the power of the state, which is crucial for the maintenance of the rule of law (Slingenberg, 2020). This would prevent states from sidelining fundamental safeguards as regards the legality and accountability of their containment policies by simply authorizing asylum seekers to leave the centre a couple of hours per day, while the purpose of their policies (i.e. containment and isolation of asylum seekers) stays intact. In addition, it would ensure a better alignment between the human rights law framework and the lived experiences of asylum seekers, which increases human rights law's legitimacy.

Footnotes

Acknowledgements

The author would like to thank the editors, Michel Vols, Vladislava Stoyanova, Karin Åberg and all participants to the seminar on ‘Housing and Social Control A legal Evaluation’, at the Vrije Universiteit Amsterdam in June 2022 for their comments on drafts of this paper.

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This work was supported by the Nederlandse Organisatie voor Wetenschappelijk Onderzoek (grant number 016.Veni.195.128).

ORCID iD

C.H. (Lieneke) Slingenberg

Notes

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