The Court found that Article 8(3)(e) of Directive 2013/33 is compliant with Article 6 and Article 52 (1) and (3) of the Charter.
Detention of asylum seekers on grounds of public order and public security has to be proportionate and the notions of public order and public security narrowly interpreted.
J.N. came to Netherland in 1995. In years 1999 to 2015 he was 21 times convicted of an offence, mostly theft. The penalties ranged from fines to imprisonment. In 2013 J.N. applied for asylum for the third time. His application was rejected. He was ordered to leave the European Union immediately and a ten-year entry ban was imposed on him.
J.N. did not leave the European Union. He was arrested and convicted of another theft and failure to comply with the entry ban imposed on him. While in prison in 2015 he applied for asylum for the fourth time.
After his release from prison J.N. was detained for asylum purposes that is to ascertain whether it was possible for him to be heard in respect of his asylum application. He was subsequently released after around two weeks of detention.
After his release J.N. was once again arrested and convicted of another theft and failure to comply with the entry ban imposed on him. He was convicted and served the penalty of three months imprisonment.
After his release from prison J.N. was detained for asylum purposes that is on grounds of protecting national security or public order, given that he had been convicted of a number of offences and was suspected of having committed others.
J.N. challenged his detention decision and claimed damages.
Is Article 8(3)(e) of Directive 2013/33 valid in the light of Article 6 of the Charter:
(1) in a situation where a third-country national has been detained pursuant to point (e) of the first subparagraph of Article 8(3) of that directive and, under Article 9 of Directive 2013/32, has the right to remain in a Member State until a decision on his asylum application has been made at first instance, and
(2) in view of the Explanations relating to the Charter that the limitations which may legitimately be imposed on the rights in Article 6 of the Charter may not exceed those permitted by the ECHR in the wording of Article 5(1)(f) thereof, and in the light of the interpretation by the European Court of Human Rights of the latter provision in, inter alia, Nabil and Others v. Hungary, no. 62116/12, § 38, 22 September 2015, according to which the detention of an asylum seeker is contrary to the aforementioned Article 5(1)(f) if such detention was not imposed with a view to removal?
The Court stated that fundamental rights recognised by the ECHR constitute general principles of EU law and whilst Article 52(3) of the Charter provides that the rights contained in the Charter which correspond to rights guaranteed by the ECHR are to have the same meaning and scope as those laid down by the ECHR, the latter does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into EU law.
Furthermore the Court reminded that an EU measure must be interpreted, as far as possible, in such a way as not to affect its validity and in conformity with primary law as a whole and, in particular, with the provisions of the Charter.
Article 8(3)(e) of Directive 2013/33 limits the right to liberty entrenched in article 6 of the Charter. Therefore it should be analyzed in the light of article 52 (1) of the Charter. The Court held that the limitation of liberty is provided by law, does not affect the essence of the right to liberty and meets an objective of general interest recognised by the European Union.
The Court further analyzed whether the limitation of liberty meets the criteria of proportionality. The test of proportionality requires that measures adopted by the EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question, since the disadvantages caused by the legislation must not be disproportionate to the aims pursued.
The Court found that the detention of asylum seekers on ground of national security and public order by its very nature protects rights and liberties of others and thus is suitable for attaining the objective pursued.
As to the requirement of necessity the Court held that every limitation of personal liberty must be strictly necessary. This test was also met since asylum seeker can only be detained when the protection of national security or public order so 'requires', the grounds for detention need to be laid down in national law, detention cannot be based solely on the fact of applying for asylum, detention should be always a measure of last resort after individual assessment of each case, detention should be ordered for as short a period as possible and may be kept only for as long as the grounds for detention are applicable, and the directive provides for significant procedural and legal safeguards.
Moreover the Court stressed the need of strict interpretation of the notion public order and public security. The concept of ‘public order’ entails the existence — in addition to the disturbance of the social order which any infringement of the law involves — of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, whereas ‘public security’ covers both the internal security of a Member State and its external security and that, consequently, a threat to the functioning of institutions and essential public services and the survival of the population, as well as the risk of a serious disturbance to foreign relations or to peaceful coexistence of nations, or a risk to military interests, may affect public security.
Thus the detention is only acceptable if asylum seeker’s individual conduct represents a genuine, present and sufficiently serious threat, affecting a fundamental interest of society or the internal or external security of the Member State concerned.
Finally, the Court held that article 8 (3)(e) of the directive 2013/33 is proportionate as it struck the fair balance between the general interest and interference with the right to liberty.
In the end the Court stressed that this interpretation is compatible with the protection afforded by article 5 (1)(f) ECHR and thus does not infringe article 52 (3) of the Charter. The Court found that the European Court of Human Rights in case Nabil and Others v. Hungary did not rule out the possibility of the detention of a third-country national in respect of whom a return decision accompanied by an entry ban was adopted prior to the lodging of an application for international protection. Pending asylum case does not preclude that the detention was for the purpose of deportation, as a rejection of asylum application may open the way to enforcement of a removal orders that had already been made, so return proceedings were still ‘in progress’ according to Article 5(1) (f) ECHR.
Assessment by Steve Peers, http://eulawanalysis.blogspot.be/2016/03/detention-of-asylum-seekers-first-cjeu.html
The judgement could have potentially a wider impact as to detaining asylum seekers in general, the usage of ‘soft’ human rights law and the interpretation of the Return Directive (2008/115/EC).
The Court made clear that the public policy and national security grounds for detention must be narrowly interpreted, and interpreted consistently with EU free movement law. The principle of proportionality must mean that detention would be harder to justify in the absence of an expulsion decision, and that the seriousness and number of the offences are also highly relevant. Conversely, it seems unlikely that an expulsion decision alone could justify detention on this ground.
According to the author the Court’s reasoning casts light by analogy on the validity and interpretation of the other five detention grounds. The public interest arguments for the other grounds of detention are less obvious, although the Court could probably find them such as the efficiency of the asylum system and immigration control. But the restrictions on liberty are not so obviously appropriate as is the case for public policy and national security. As for necessity, the Court applied the ‘strictly necessary’ rule to all deprivations of liberty.
The author of the comment points that the Court’s use of international human rights ‘soft law’ is remarkable in itself. He later states that the explanatory memorandum to the original proposal is enough to trigger incorporation of the soft law into the Court’s interpretation of the Directive.
The usage of soft law while interpreting the reception condition directive could be important while ruling on the detention on grounds of determining nationality or identity, or to determine elements of the claim, asylum-seekers’ criminal convictions for irregular entry, alternatives to detention, judicial review of and the conditions for detention.