Detention represents a widespread Member States practice in the field of immigration, including asylum. In the recent years, European law converged to measures aiming to fight irregular immigration rising in Europe. Some of the measures taken included the criminalization of entering illegally or remaining illegally there after a legal entrance. Furthermore, detention is also used as precautionary measure for administrative purposes, for example, during the identification and evaluation of the status of the migrant. Also, detention is applied in proceedings on the determination of an application for international protection, including detention aimed a securing the transfer of the applicant to the Member State responsible for examining his application. Finally, detention is applied in the procedure of expulsion.
In line with Article 5 ECHR, the lawful arrest or detention of a person in order ‘to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition’ is not inconsistent with international and European legal framework. In fact, the possibility of detaining asylum seekers and refugees is not forbidden in principle. However, the possibility to detain asylum seekers and migrants is always an exception to the fundamental right to freedom and, in this vein, it must be restricted particularly. Accordingly, it must be prescribed by law and must not be arbitrary. Even if applied, the deprivation of freedom must be accompanied by a set of important safeguards and by humane and dignified treatments.
Furthermore, in this respect it is worth to mention the Article 31 of the 1951 Geneva Convention. Said provision states that penalties must not be imposed, on account of irregular entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened [[…]], enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
EU law provides the basis for a detention of asylum seekers and migrants in a number of pieces of secondary legislation.
Provisions on the detention of asylum seekers can be found in the Reception Conditions Directive 2013/33 (recast). Article 2(h) of the 2013/33 Directive contains a definition of "detention" — described as confinement of an applicant by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement.
Article 8 of the 2013/33 Directive contains a ground rule concerning detention of asylum seekers, namely precluding holding a person in detention for the sole reason that he or she is an applicant for international protection. This rule is reiterated in Article 26(1) of the Procedures Directive 2013/32.
The Reception Conditions Directive provides that detention may be considered as a measure of last resort, and only for as short a period as possible. The Directive stresses the importance of a consideration of alternatives to detention.
The Directive is also setting the list of grounds for a detention. An applicant for asylum may be detained only:
- in order to determine or verify his or her identity or nationality;
- in order to determine those elements on which the application for international protection is based, that could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant;
- in order to decide, in the context of aprocedure, on the applicant’s right to enter the territory;
- when he or she is detained, subject to a return procedure, and there are reasonable grounds to believe that he or she is making the application for international protection merely in order to delay or frustrate the enforcement of the return decision;
- when protection of national security or public order so requires;
- to secure transfer under the Dublin Regulation.
With regard to the most relevant safeguard measures of Directive 2013/33, it provides in its Article 9, that detention of applicants shall be ordered in writing by judicial or administrative authorities. The detention order shall state the factual and legal reasons on which it is based. It also provides for speedy judicial review of the lawfulness of the detention, if detention is ordered by administrative authorities. The Article also provides for the right to access to free legal assistance and representation in detention proceedings.
Directive 2013/33 regulates also the conditions of the detention. According to Article 10 of the Directive, detention of applicants shall take place in specialised detention facilities. In exceptional cases, where a Member State is obliged to resort to prison accommodation, the detained applicant shall be kept separately from ordinary prisoners. According to the Directive detained applicants shall have access to open-air spaces. It also guarantees that persons representing the United Nations High Commissioner for Refugees (UNHCR), family members, lawyers and NGO representatives have the possibility to communicate with and visit detained applicants. The Directive stresses the importance of providing the detained applicants with information explaining the rules applied in the detention centre.
Special attention is provided by Directive 2013/33 to the detention of vulnerable persons and applicants with special reception needs. According to Article 9, the health, including mental health, of applicants in detention who are vulnerable persons shall be of primary concern to national authorities. The Directive requires regular monitoring and adequate support for vulnerable persons, taking into account their particular situation.
The Directive moreover clearly states that minors shall be detained only as a measure of last resort, and only when other less coercive alternative measures cannot be applied effectively. Detention of minors shall be for the shortest period of time. They shall have the possibility to engage in leisure activities. According to the Directive, unaccompanied minors shall be detained only in exceptional circumstances. They can never be detained in prison accommodation and should be also accommodated separately from adults.
Female applicants shall be accommodated separately from male applicants, unless the latter are family members and all individuals concerned consent thereto.
The Procedures Directive 2013/32 contains a few provisions on detention. According to Article 8, if there are indications that migrants held in detention facilities may wish to make an application for international protection, they should be provided with information on the possibility to do so. Additionally, Article 26 requires Member States to ensure the possibility of speedy judicial review of the applicant’s detention.
Dublin III Regulation in Article 28 provides, that detention cannot be imposed on theapplicant solely because he or she is subject to the procedure established by this Regulation. It states, that detention may be imposed in order to secure transfer procedures, only when there is a significant risk of absconding, on the basis of an individual assessment, and only in so far as detention is proportional and other less coercive alternative measures cannot be applied effectively. The detention shall be for as short a period as possible, and shall last no longer than the time reasonably necessary to fulfil the required administrative procedures with due diligence, until the transfer is carried out
The so-called Returns Directive, 2008/115/EC, contains provisions on the detention of irregularly staying migrants, who are the subject of return procedures in order to prepare the return and/or carry out the removal process. The Directive guarantees safeguards measures and procedures. In particular, it introduced a horizontal set of rules, applicable to all third-country nationals who do not or who no longer fulfil the conditions for entry, stay or residence in a Member State.
The Preamble of the Returns Directive contains an explicit reference to the Charter of Fundamental Rights. Paragraph 16 of the Preamble states: This Directive respects the fundamental rights and observes the principles recognized in particular by the Charter of Fundamental Rights of the European Union. Therefore, the Charter represents the instrument through which to interpret and to implement the provisions of the ‘Returns Directive’.
The Preamble of the Directive also underlines that the ending of illegal stay of third-country nationals is carried out through a fair and transparent procedure and that decisions should be adopted on a case-by-case basis and based on objective criteria, implying that consideration should go beyond the mere fact of an illegal stay. The fundamental assumption is that the use of detention should be subject to the principle of proportionality with regard to the means used and objectives pursued and that third-country nationals in detention should be treated in a humane and dignified manner with respect for their fundamental rights.
It is worth to remember that this Directive in contrast to the Reception Conditions Directive does not define ‘detention’. With regard to the most relevant safeguards measures and procedures provided by it, Article 15 of the Directive establishes that detention must be ordered in writing with reasons given in fact and in law by a competent authority, namely an administrative or judicial authority. It also establishes that third-country migrants may be held in detention up to 6 months, a period that may extend to a maximum of 18 months. Special attention is provided by the Directive for the conditions of detention. In particular, Article 16 provides that particular attention must be paid to the situation of vulnerable persons. In addition, Article 17 provides for specific measures for unaccompanied minors and families with minors. These measures are in line with the principle of the ‘best interest of the child’ enshrined in the 1989 United Nations Convention on the Rights of the Child.
The detention of asylum seekers is being increasingly challenged before European and national courts. Therefore, in recent years a significant jurisprudence has developed, in particular, of the CJEU and the ECHR, which clearly shows the need to balance the different interests and the different needs with regard to detention, which are all legally relevant and protected.
The body of cases might be divided into four different groups.
Preliminary rulings, concerning the detention of asylum seekers and irregularly staying third-country nationals, where the Charter was invoked can be divided into four groups.
The first group deals with the references questioning the validity of EU secondary law.
The second group concerns the interpretation of Dublin III Regulation provisions allowing the detention of asylum seekers who are to be transferred to another Member State.
The third group concentrates on procedural guarantees of those detained.
The fourth group is composed of judgments were the Charter was not directly invoked, yet the Court of Justice referred to fundamental rights of those detained.
In the first group of cases, the Court of Justice analysed the validity of EU secondary law in the light of the right to liberty and security, provided for by Article 6 of the Charter. In cases C-601/15 J. N. and C-18/16 K., the Court of Justice ruled on the validity of Articles 8(3)e and 8(3)a-b of the Reception Directive respectively.
The essence of the dispute was, whether it was permissible to detain asylum seekers during an asylum procedure to verify their identity or nationality, to gather relevant information in their asylum procedures, or for reasons of national security or public order. The referring national court noticed that EU secondary legislation provides asylum seekers with a right to remain in the Member State during the first instance asylum procedure. The referring court also observed that Article 5.1.f ECHR permits the lawful detention of a person against whom action is being taken with a view to deportation or extradition. Consequently, the national court wondered whether actions taken against asylum seekers, who can lawfully reside on the territory of the Member State while his/her asylum application is examined, could be considered as actions taken with a view to deportation. And if not, whether the detention of such an asylum seeker does not amount to an unlawful deprivation of liberty.
The Court of Justice ruled in both cases that the EU secondary law does not infringe the Charter, and is compatible with rights guaranteed by the ECHR. In both cases the Court of Justice focused it’s rulings around conditions, which must be met for the deprivation of liberty of an asylum seeker to be lawful. The Court highlighted that the EU secondary legislation must be interpreted in conformity with provisions of the Charter.
Each restriction of liberty has to be provided by law, not to affect the essence of the right to liberty, and meet a proportionality test. What is important, the Court of Justice did not simply rely on the jurisprudence of the European Court of Human Rights. While analysing the validity of the EU law, the CJEU primarily relied on the Article 6 of the Charter, analysed in conjunction with the Article 52 of the Charter, outlining permissible limitations of fundamental rights. Using such an approach the Court stressed, that the level of protection afforded by EU law is compatible with the protection afforded by the ECtHR. The CJEU highlighted that the ECHR does not generally preclude the detention of asylum seekers, as after a negative asylum decision they can be subject to deportation procedure.
It was highlighted by the Court of Justice that the detention of asylum seekers must always meet the test of "strict necessity". Detaining an asylum seeker is only permissible after an individual assessment of his case, when a permissible ground for detention does require so and no alternative measure can be used. The Court also reiterated the definition of "public order and public security", so that this ground for the detention of asylum seekers is not overused.
Introduction of the test of "strict necessity" to the detention of asylum seekers is a significant development. It must be highlighted that protection afforded by the ECHR does not require the test of "necessity" to be met for the detention of asylum seekers to be lawful. From this perspective, protection against the restriction of the right to liberty afforded by the Charter is stronger.
The Court of Justice stressed that while interpreting EU law, the ECHR must be taken into account. Necessary consistency between those two instruments must be ensured and the interpretation of the Charter cannot lead to a weaker protection than the one afforded by the ECtHR. Yet, it cannot adversely affect the autonomy of the EU law and the Court of Justice.
The CJEU acknowledged the importance of Article 6 of the Charter and the gravity of an interference with that right by detention. Although not eliminating the EU provisions allowing for the detention of asylum seekers, the Court of Justice tried to limit an overuse of the detention of asylum seekers by introducing the test of "strict necessity" to all permissible grounds of detention, and by providing a narrow definition of the notion of "public order and public security".
The second group of cases where the Court of Justice ruled on the detention of asylum seekers, and referred to the provisions of the Charter, concerns the detention under the Dublin III Regulation — that is asylum seekers waiting to be transferred to another Member State responsible for the examination of their application for asylum. The CJEU issued two rulings in this category. Both of them significantly influenced the practice of Member States in terms of the detention of asylum seekers waiting for the transfer under Dublin III Regulation.
In its judgment in the case Al Chodor, C-582/15, the Court of Justice stressed the importance of judicial protection and the protection against arbitrary detention provided for by the Charter. The Dublin III Regulation allows for the detention of asylum seekers, when they are to be transferred to another Member State and pose significant risk of absconding. The CJEU held that in order to genuinely protect against arbitrary detention, the objective criteria indicating the presence of a risk of absconding must be clearly provided by national law. In the absence of such objective criteria detention of asylum seekers under Dublin III Regulation will not be permissible, as it would violate the right to liberty and security of asylum seekers. The Court stressed that the national legislation must be sufficiently clear, predictable, accessible and it has to protect against arbitrariness.
The ruling significantly increased the level of protection against arbitrary detention of asylum seekers. At the time some Member States still did not list objective criteria of the "risk of absconding" in their national legislation, i.e. France, the Czech Republic or the UK. These legal systems allowed for broad usage of detention of transferable asylum seekers. After the ruling of the CJEU the detention of asylum seekers waiting to be transferred to another Member State under the Dublin III Regulation became more predictable.
In the other significant ruling, Mohammad Khir Amayry, C-16/16, the CJEU clarified the maximum time period that an asylum seeker can be detained while waiting for a transfer to another Member State. The Dublin III Regulation only to a limited degree regulates the maximum period of detention of transferable asylum seekers. The Court of Justice strengthened the protection afforded to those asylum seekers. In its preliminary ruling the Court highlighted that, when a limitation on the exercise of the right to liberty and security is introduced by EU secondary law Article 6 of the Charter must be observed. Although not definitely stating the maximum permissible period of detention, the Court of Justice found that 3 months detention exceeds the period which is reasonably necessary to transfer an asylum seeker while acting with due diligence. Detention cannot exceed the period necessary for the purposes of the transfer procedure.
The reference to the obligation of state authorities to act with due diligence in procedures concerning detained asylum seekers is comparable to the obligation deriving from the jurisprudence of the European Court of Human Rights. Detention for the purpose of deportation is permissible only as long as it is not arbitrary. One of the aspects while examining the arbitrariness of the detention is whether state authorities acted with due diligence towards the detained foreigner. Although not directly referencing to the jurisprudence of the European Court of Human Rights, the Court of Justice applied similar standards to analyse the lawfulness of the detention of asylum seekers under EU secondary law in the above-mentioned cases.
The third group of preliminary rulings referencing the Charter in detention cases concerns procedural safeguards. The Court of Justice acknowledges the role of procedural guarantees in the proper administration of the detention policy. Through its jurisprudence the Court tries to reconcile the need to guarantee fundamental rights of third-country nationals and the necessity to guarantee for effective deportation proceedings throughout the EU.
In its judgment Mahdi, C-146/14, the Court of Justice clarified that the decision extending the detention of a third-country national in a return procedure must be given in writing and include the reasons in fact and in law for that decision. Furthermore, the CJEU held, that the domestic court supervising the extension of the detention must be authorized to apply less coercive measures, to release a third-country national, and to take into account all facts and evidence submitted by the state authority, the third-country national, or gathered by its own motion.
In a motion for a preliminary ruling, the domestic court referred to Articles 6 ECHR and 47 of the Charter (right to an effective remedy and a fair trial). The Court of Justice recalled the principle of procedural autonomy. Member States are competent to determine procedural requirements relating to a detention-review measure. Yet, what was highlighted is that the procedural autonomy must ensure the observance of the fundamental rights.
The Court of Justice clarified that according to its established jurisprudence, knowledge of the reasons of the decision is essential to enable the third-country national to defend his/her rights in the best possible conditions, decide whether to appeal the decision and to enable the supervising court to genuinely review the legality of the detention decision. Those are all elements necessary to guarantee a right to a fair trial and to an effective remedy, and therefore cannot be ignored by Member States.
The question of procedural guarantees of detained third-country nationals was also brought to the attention of the Court of Justice by the Dutch court in M.G. and M.R., C-383/13. The issue before the Court of Justice focused around legal consequences of the breach of the right to be heard in proceedings on the extension of detention.
The CJEU pointed to the fact, that EU secondary law does not include procedural rules for the extension of the detention of third-country nationals in the deportation procedure. Yet, the right to be heard constitutes an important element of the right to defence and thus, it is among the fundamental rights enshrined in the Charter. Member States are obliged to respect those rights while applying EU secondary law, regardless whether those rights were explicitly incorporated into EU secondary legislation or not.
On the other hand the Court of Justice stressed that the right of defence is not an absolute one and may be restricted in accordance with Article 52 of the Charter. Procedural autonomy of Member States requires states to adopt national law in this regard. Such a law has to respect the principle of equivalence — rules governing the detention of third-country nationals should be the same as those to which individuals in comparable situations are subject under national law; and the principle of effectiveness — national law cannot make it impossible in practice, or excessively difficult, to exercise the rights of defence.
Finally, the CJEU held that an infringement of the right to defence does not, under EU law, automatically result in an annulment of the decision to prolong the detention of third-country national in deportation proceedings. Such a consequence can be subscribed when the outcome of the procedure might have been different, had the right of the defence been properly observed.
The last, fourth group of preliminary rulings is a group where the Charter itself was not directly referenced, yet the Court of Justice acknowledged the obligation to observe fundamental rights of third-country nationals while deciding on their detention.
In one of those rulings, Pham, C-474/13, the CJEU held that third-country nationals detained for deportation purpose cannot be detained together with ordinary prisoners. The obligation to respect fundamental rights and the dignity of third-country nationals prohibits such a treatment. Furthermore, the Court of Justice stressed that the wish of a third-country national is irrelevant in the situation. Under no circumstances can the third-country national waiting for the deportation be detained together with ordinary prisoners.
In other cases the CJEU referred to fundamental rights and reaffirmed principles deriving from the jurisprudence of the European Court of Human Rights, which have to be respected. In the case El Dridri, C-61/11, the Court of Justice reaffirmed the principle of proportionality stating that the length of the deprivation of liberty should not exceed that required for the purpose pursued. In the case Kadzoev, C-357/09, although not directly referencing to fundamental rights, the Court of Justice clarified the notion of "lack of reasonable prospect of removal". Deciding whether towards a detained third-country national there is a reasonable prospect of removal, is a significant element while analysing whether domestic authorities acted in a good faith and thus whether the detention was arbitrary or not.
To conclude, in the jurisprudence of the Court of Justice in detention cases the Charter started to play a more significant role. The CJEU frequently relies on the judgments or standards set by the European Court of Human Rights. Yet, it also proposes its own unique solutions based on the Charter. What is worth remembering is that all EU Member States are also subject to the jurisdiction of the ECtHR. In consequence, when it comes to fundamental rights of detained third-country nationals both the Court of Justice and the European Court of Human Rights could adjudicate on the same case.
The detention of asylum seekers in asylum and transfer procedures, and irregularly staying third-country nationals in return procedure, was, as we showed above, on numerous occasions a subject of a preliminary ruling of the Court of Justice. In the vast majority of cases the Court of Justice either directly referenced the Charter of Fundamental Rights or referred to the need to observe fundamental and human rights without explicitly mentioning the Charter.
What is worth highlighting is the growing tendency of the Court of Justice to directly rely on the Charter while adjudicating detention cases. As of today (July 2018), all of the preliminary references concerning the detention of asylum seekers under Dublin III Regulation and the Reception Directive 2013/33/EU contain a direct reference and analysis of the Charter.
In many judgments, referring to the Charter, the CJEU interpreted EU law in order to protect individuals underlining that detention is a serious interference with the right to freedom and it should be made with exceptionally strict and precise interpretation of its provisions.
Still, the judgments regarding the validity of the grounds for detention might be seen as controversial. It seems that the level of interference with the right to liberty and security, set out in the Charter, in these judgments is lower than with the one guaranteed by the ECHR. And this, in turn, raises doubts about the correct application of Article 52 (3) of the Charter.
 ECtHR, Saadi v. the United Kingdom, application no. 13229/03, 29 January 2008, para. 72.