The Court of Justice ruled that national legislation must provide objective criteria indicating the presence of a risk of absconding. Otherwise the detention of asylum seekers under Dublin III Regulation will not be permissible. Furthermore, the Court stressed that the national legislation laying down those criteria must be sufficiently clear, predictable, accessible and it has to protect against arbitrariness.
The Al Chodors were controlled by the police in Czech Republic and could not present any identity documents. They declared that they came from Iraq are of Kurdish origin and their village had been occupied by Islamic State fighters. They came to Czech Republic through Turkey, Greece and Hungary. In Hungary theirs’ fingerprints were taken and they applied for asylum. The Al Chodors continued their journey with the aim of reuniting with family members in Germany.
The Al Chodors were detained with the view of their transfer to Hungary as according to authorities they posed a serious risk of absconding. They had no identity documents nor accommodation in Czech Republic and they had left the refugee camp in Hungary, with the intention of travelling to Germany, without waiting for their asylum decision.
The detention decision was annulled as the Czech legislation did not lay down objective criteria for the assessment of the risk of absconding within the meaning of Article 2(n) of the Dublin III Regulation. Consequently the Al Chodors were released and left the Czech Republic in an unknown destination.
The annulment decision was appealed by the authorities.
Does the sole fact that a law has not defined objective criteria for assessment of a significant risk that a foreign national may abscond within the meaning of Article 2(n) of the Dublin III Regulation render detention under Article 28(2) of that regulation inapplicable?
The Court reminded that article 28(2) of the Dublin III Regulation, permits the detention of applicants, in order to secure transfer procedures in accordance with that regulation, when there is a significant risk of absconding on the basis of an individual assessment, and only in so far as the detention is proportional and where other less coercive alternative measures cannot be applied effectively.
The Court further stated that some of the provisions of regulations may necessitate, for their implementation, the adoption of measures of application by the Member States. This is the case with regard to Article 2(n) of the Dublin III Regulation, which explicitly requires that objective criteria defining the existence of a risk of absconding be ‘defined by law’.
The Court noted that the Dublin III Regulation is intended to make the necessary improvements not only to the effectiveness of the Dublin system but also to the protection afforded to applicants under that system. He stated that the possibility to detain an asylum seeker limits the exercise of the fundamental right to liberty enshrined in Article 6 of the Charter and therefore has to comply with the requirements of article 52 (1) and (3) of the Charter. As a consequence article 5 ECHR indicates the minimum threshold of protection.
The Court further referred to the jurisprudence of the European Court of Human Rights. He stated that the deprivation of liberty must be lawful not only in the sense that it must have a legal basis in national law, but also that lawfulness concerns the quality of the law.
Article 6 of the Charter and article 5 ECHR grants a protection against arbitrariness. Deprivation of liberty cannot be carried out in bad faith nor can there be any deception on the part of the authorities.
Detention of applicants, constituting a serious interference with those applicants’ right to liberty, is subject to compliance with strict safeguards, namely the presence of a legal basis, clarity, predictability, accessibility and protection against arbitrariness.
Consequently only a provision of general application could meet the requirements of clarity, predictability, accessibility and, in particular, protection against arbitrariness. Objective criteria defining the existence of a risk of absconding must be ‘defined by law’ which is a binding provision of general application. Mere settled case-law confirming a consistent administrative practice cannot suffice.
In the absence of those criteria in such a provision the detention must be declared unlawful, which leads to the inapplicability of Article 28(2) of the Dublin III Regulation.
Immigration detention and the rule of law: the ECJ’s first ruling on detaining asylum-seekers in the Dublin system, by Tommaso Poli, available at: http://eulawanalysis.blogspot.com/2017/05/immigration-detention-and-rule-of-law.html