Immigration Detention In Addition To The Dominion Of Law: The Ecj’S Commencement Ruling On Detaining Asylum-Seekers Inwards The Dublin System

Tommaso Poli, LL.M. candidate inward Human Rights together with Humanitarian Law at the University of Essex, School of Law.

One of the nigh controversial issues inward immigration police is the detention of asylum-seekers. This number was non initially addressed past times the European Common Asylum System (CEAS), but is at in ane lawsuit addressed inward unopen to of the second-phase CEAS measures (the CEAS consists of the Asylum Procedures Directive, the Reception Conditions Directive, the Qualification Directive, the Dublin Regulation together with the EURODAC Regulation).

In particular, the second-phase CEAS measures comprise detailed rules on detaining asylum-seekers inward 2 cases:  a) full general rules inward the Reception Conditions Directive, which were the champaign of report of a showtime ECJ ruling inward 2016 (discussed here) together with a recent opinion of an Advocate-General; together with b) to a greater extent than specific rules inward the Dublin III Regulation, applying to asylum-seekers whose application is considered to go the responsibleness of unopen to other Member State nether those rules. Recently, the ECJ ruled for the showtime fourth dimension on the interpretation of the latter provisions, inward its judgment inward the Al Chodor case.

As nosotros volition see, the Court took a strong catch of the demand for the dominion of police to apply inward detention cases. Moreover, its ruling is potentially relevant non merely to Dublin cases, but also detention of asylum-seekers together with irregular migrants inward other contexts too.

The rules on detaining asylum-seekers inward the context of the Dublin physical care for are educate out inward Article 28 of the Dublin III Regulation. First of all, Article 28(1) states that asylum seekers can’t go detained purely because they are champaign of report to the Dublin process. Then Article 28(2) sets out the sole Earth for detention: when at that spot is a ‘significant withdraw a opportunity of absconding’. If that is the instance ‘Member US may detain the someone concerned inward monastic say to secure transfer procedures inward accordance with’ the Dublin rules, ‘on the footing of an private assessment together with alone inward so far every bit detention is proportional together with other less coercive alternative measures cannot go applied effectively’.

Next, Article 28(3) sets out detailed rules on fourth dimension limits for ‘Dublin detention’; these are the champaign of report of the pending Khir Amayry case. Finally, Article 28(4) states that the full general rules on guarantees relating to procedural rights together with detention atmospheric condition educate out inward the Reception Conditions Directive apply to asylum-seekers detained nether the Dublin rules.

Al Chodor concerned the interpretation of the grounds for detention nether Article 28(2): what is a ‘serious withdraw a opportunity of absconding’?  The Dublin III Regulation offers unopen to express clarity, defining ‘risk of absconding’ every bit ‘the existence of reasons inward an private case, which are based on objective criteria defined past times law, to believe that an applicant or a 3rd province national or a stateless someone who is champaign of report to a transfer physical care for may abscond.’ (Article 2(n) of the Regulation). 

Facts

The instance relates to an Iraqi human together with his 2 pocket-size children who were travelling from Republic of Hungary inward the Czech Republic, without whatever documentation to found their identity, amongst the aim of joining identify unit of measurement members inward Germany. After stopping the Al Chodors, the Czech Foreigners Police Section (FPS) consulted the Eurodac database together with found that they had made an asylum application inward Hungary. As a consequence, the Al Chodors were subjected to the transfer physical care for according to Article 18(1)(b) of the Dublin III Regulation. In addition, the FPS took the catch that at that spot was a ‘serious withdraw a opportunity of absconding’, given that the Al Chodors had neither a residence permit nor accommodation inward the Czech Republic, spell they were waiting for their transfer to Hungary.

So, they placed the Al Chodors inward detention for thirty days pending their transfer pursuant to Paragraph 129(1) of the national police on the residence of unusual nationals, read inward conjunction amongst Article 28(2) of the Dublin III Regulation. The Al Chodors brought an activity against the conclusion ordering their detention to the regional Court, which annulled that decision, finding that Czech legislation does non lay downwards objective criteria for the assessment of the withdraw a opportunity of absconding inside the pregnant of Article 2(n) of the Dublin III Regulation. That Court accordingly ruled that the conclusion was unlawful. Following the annulment of the conclusion of the FPS, the Al Chodors were released from custody.

The FPS brought an appeal on a indicate of police earlier the Supreme Administrative Court against the conclusion of the Regional Court. According to the FPS, the inapplicability of Article 28(2) of the Dublin III Regulation cannot go justified past times the mere absence inward Czech legislation of objective criteria defining the withdraw a opportunity of absconding. That provision subjects the assessment of the withdraw a opportunity of absconding to 3 conditions, namely an private assessment taking trouble concern human relationship of the circumstances of the case, the proportionality of the detention, together with the impossibility of employing a less coercive measure. The FPS has submitted that it satisfied those conditions.

The Supreme Administrative Court was uncertain whether the recognition past times its settled case-law of objective criteria on the footing of which the detention of persons pursuant to Paragraph 129 of the Law on the residence of unusual nationals may go carried out tin run into the requirement of a Definition 'by law' inside the pregnant of Article 2(n) of the Dublin III Regulation, inward so far every bit that case-law confirms a consistent administrative practise of the FPS which is characterised past times the absence of arbitrary elements, together with past times predictability together with an private assessment inward each case. So the Court decided to refer to the European Court of Justice for a preliminary ruling bespeak whether Article 2(n) together with Article 28(2) of the Dublin III Regulation, read inward conjunction, must go interpreted every bit requiring Member US to establish, inward a national law, objective criteria underlying the reasons for believing that an applicant for international protection who is champaign of report to a transfer physical care for may abscond, together with whether the absence of those criteria inward a national police leads to the inapplicability of Article 28(2) of that regulation.

Judgment

The Court of Justice showtime of all ruled that Article 2(n) of the Dublin III Regulation explicitly requires that objective criteria defining the existence of a withdraw a opportunity of absconding go defined past times the national police of each Member State (paragraph 27-28). Then, determining whether the give-and-take ‘law’ must go understood every bit including settled case-law, the Court reaffirmed that inward interpreting a provision of European Union law, it is necessary to consider non alone its wording but also the context inward which it occurs together with the objectives pursued past times the rules of which it forms business office (judgment of 26 May 2016, Envirotec Denmark, paragraph 27).

So amongst regard to the full general scheme of the rules of which Article 2(n) of Dublin III Regulation forms part, the Court, referring to recital nine of that regulation, states that the regulation is intended to brand necessary improvements, inward the lite of experience, non alone to the effectiveness of the Dublin organization but also to the protection of key rights afforded to applicants nether that system. This high grade of protection is also clear from Articles 28 together with 2(n) of that regulation, read inward conjunction. As regards the objective pursued past times Article 2(n) of the Dublin III Regulation, read inward conjunction amongst Article 28(2) thereof, the Court recalls that, past times authorizing the detention of an applicant inward monastic say to secure transfer procedures pursuant to that regulation where at that spot is a important withdraw a opportunity of absconding, those provisions furnish for a limitation on the exercise of the key correct to freedom enshrined inward Article vi of the Charter.

In that regard, it is clear from Article 52(1) of the Charter that whatever limitation on the exercise of that correct must go provided for past times police together with must honour the essence of that correct together with go champaign of report to the regulation of proportionality. Furthermore, it is worth noting that inward this ruling the European Court of Justice explicitly aligns its interpretation to the European Court of Human Rights (ECtHR), reaffirming that whatever deprivation of freedom must go lawful non alone inward the feel that it must accept a legal footing inward national law, but also that lawfulness concerns the character of the police together with implies that a national police authorizing the deprivation of freedom must go sufficiently accessible, precise together with foreseeable inward its application inward monastic say to avoid withdraw a opportunity of arbitrariness (judgment of the European Court of Human Rights of 21 Oct 2013, Del Río Prada v Spain, paragraph 125).

The Court together with so concluded past times stating that taking trouble concern human relationship of the role of the provisions concerned, together with inward the lite of the high grade of protection which follows from their context, alone a provision of full general application could run into the requirement of clarity, predictability, accessibility and, inward particular, protection against arbitrariness. It follows that Article 2(n) together with Article 28(2) of the Dublin III Regulation, read inward conjunction, must go interpreted every bit requiring that the objective criteria underlying the reasons for believing that an applicant may abscond must go established inward a binding provision of full general application. In the absence of such criteria, the detention was unlawful.

Comments

First of all, the Court’s ruling is probable relevant to the interpretation of other European Union measures concerning immigration detention. In the Returns Directive, which inter alia concerns the detention of irregular migrants (as distinct from asylum seekers), the ‘risk of absconding’ forms business office of the Earth for detention (as good every bit ane of the grounds for refusing to permit the irregular migrant a current for voluntary departure); together with it is defined just the same agency every bit inward the Dublin III Regulation. As for asylum seekers who are detained on grounds other than the Dublin process, a ‘risk of absconding’ is an chemical constituent of ane of the grounds for detention nether the Reception Conditions Directive, but is non farther defined. But a recent Advocate-General’s opinion notes (at para 73) that this clause aims to forbid ‘arbitrary’ detention, which was a key characteristic of the reasoning inward the Al Chodor judgment. This for sure points to a consistent interpretation of the 2 asylum laws. It follows that arguably the Court’s judgment should go relevant non merely to Dublin cases but to any immigration detention of non-EU citizens inward whatever Member State saltation past times the relevant European Union legislation.

Secondly, this ruling has reiterated the regulation past times which although regulations to a greater extent than oft than non accept immediate effect inward national legal systems without it beingness necessary for the national government to adopt measures of application, unopen to of those provisions may necessitate, for their implementation, the adoption of measures of applicability past times the Member US (judgment of fourteen Apr 2011, Vlaamse Dierenartsenvereniging together with Janssens, paragraphs 47 together with 48).

Most significantly, the Court has reaffirmed the primacy of Human Rights police inward European Union asylum police implementation, highlighting that the evolution of the European Union asylum police itself depends on its compliance amongst Human Rights law. In particular, the ECJ’s ruling inward this instance showtime of all reflects the ECtHR’s interpretation of the ‘arbitrariness’ of detention, which extends beyond the lack of conformity amongst national law. Notably, it states that a deprivation of freedom that is lawful nether domestic police tin even so go arbitrary together with hence reverse to the full general principles, stated explicitly or implied, inward the Convention (judgment of the European Court of Human Rights of nine July 2009, Mooren v. Germany, paragraphs 73-77).

The Court’s ruling also reflects United Nations human rights norms. The Human Rights Committee’s General Comment No. 31 related to the nature of the full general legal obligation imposed on State parties to the United Nations Covenant on Civil together with Political Rights, which all European Union Member US are State parties to, which reads that ‘in no instance may the restrictions go applied or invoked inward a mode that would impair the essence of a Covenant right’ (paragraph 4). Furthermore, the Human Rights Committee’s General Comment No. 35 points out that “arbitrariness is non to go equated amongst ‘against the law’, but must go interpreted to a greater extent than broadly to include elements of inappropriateness, injustice, lack of predictability together with due physical care for of law, every bit good every bit elements of reasonableness, necessity together with proportionality” (paragraph 12, reckon also HRC, Van Alphen v. Netherlands, paragraph 5.8).

Finally, the Court’s ruling has confirmed the constitutional value of the Charter of Fundamental Rights of the European Union, which assumes a critical value inward this historical period, since, every bit amongst whatever constitutional instrument, the to a greater extent than monastic say every bit a whole is going through hard times (such every bit the perceived ‘migration crisis’ inward Europe), the to a greater extent than of import it is to reaffirm its principles together with values.

Likewise Article 52 of the European Union Charter states that inward no instance may restrictions go applied or invoked inward a mode that would impair the essence of a Charter right; inward the context of detention, a fortiori it tin go also affirmed that essential elements of guarantee for that right, every bit the requirement of lawfulness together with non-arbitrariness for the correct of liberty, cannot go disregarded inward whatever circumstance. The Al Chodor ruling puts meat on the bones of that key principle.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo: Amygdaleza detention centre inward Greece, credit: www.metamute.org

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