Detention Of Asylum-Seekers: The Outset Cjeu Judgment
November 25, 2018
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Steve Peers
One of the most controversial aspects of immigration too asylum police trace is the detention of migrants: people who take maintain broken no criminal police trace (other than, perchance a criminal police trace close migration control) but who are detained during their asylum application, or pending their removal from the country. The European Union has had rules on detention of irregular migrants for about time, inwards the Returns Directive (on the CJEU’s interpretation of those rules, consider my magazine article here). But it has only of late had rules on the detention of asylum-seekers, inwards the second-phase Directive on the reception weather for asylum-seekers. (The UK too Republic of Ireland take maintain opted out of both Directives).
Recently, inwards the JN judgment, the CJEU ruled for the get-go fourth dimension on the interpretation of these novel rules. In fact, this was the Court’s really get-go judgment on whatsoever aspect of the second-phase legislation, although it shortly gave about other judgment (on the rights of people alongside subsidiary protection, discussed here), too other cases are pending. The Court’s ruling addresses a number of telephone commutation questions of interpretation of the detention rules, but left a number of issues open.
In general, the Court has limited the prospect of detaining asylum-seekers on grounds of ‘national safety or populace order’, too its ruling implicitly somewhat constrains the possibilities of detaining asylum-seekers on other grounds too. But inwards parallel to that, the judgment strengthens the rules inwards the Returns Directive on the detention too expulsion of irregular migrants. And the Court’s ruling is surprisingly opened upward to the application of human rights ‘soft law’ as a agency of interpreting European Union law. Overall, spell non mentioning the electrical flow ‘refugee crisis’, the judgment is an implied rebuff to those who would similar to resort to extensive detention of asylum-seekers as a agency to address that crisis.
Background
The get-go stage reception weather Directive (adopted inwards 2003, applicable from 2005) said footling close detention of asylum-seekers. While the subsequent Returns Directive did regulate detention of irregular migrants, the CJEU made clear inwards Kadzoev too Arslan that those rules did non apply to asylum-seekers, because European Union asylum legislation gives asylum-seekers the correct to rest on the territory until a determination is made at get-go instance on their application, whereas the Returns Directive says that irregular migrants should live booted out as shortly as possible. In Arslan, the Court clarified the human relationship betwixt the 2 sets of rules: an irregular migrant detained nether the Returns Directive could non simply escape from detention past times applying for asylum. Essentially the JN judgment returns to the same issue, too asks the Court to reconsider its seat inwards low-cal of the to a greater extent than detailed rules on detaining asylum-seekers which at nowadays apply.
So what are those rules? In the second-phase reception weather Directive, the previous ban on detaining people solely because they take maintain applied for asylum is retained. The Directive too so provides to a greater extent than oft than non for detention of asylum-seekers if ‘necessary’ afterwards ‘an private assessment of each case…if other less coercive option measures cannot live applied effectively’. Detention is permitted ‘only’ on vi grounds: (a) ‘in club to determine or verify [an asylum-seeker’s] identity or nationality’; (b) to ‘determine the elements on which’ the application is based ‘which could non live obtained inwards the absence of detention, inwards particular where in that place is a run a peril of absconding’; (c) inwards club to determine on entry onto the territory; (d) when the asylum-seeker is detained pursuant to a planned expulsion nether the Returns Directive, too in that place are objective grounds to exhibit that he or she applied for asylum only to ‘delay or frustrate’ expulsion, despite having had an chance to access the asylum procedure; (e) ‘when protection of national safety or populace club so requires’; or (f) inwards accordance alongside the Dublin III Regulation on allotment of asylum-seekers betwixt Member States, which provides for detention if in that place is a ‘significant run a peril of absconding’ earlier a Dublin transfer is carried out.
The grounds for detention must live ‘laid downward inwards national law’, which must also lay downward rules on alternatives to detention. There are detailed rules on procedural guarantees as regards detention, too on the weather of detention. Those procedural guarantees too detention status rules also apply to Dublin cases, too the Dublin Regulation moreover sets out precise rules on the length of detention. The CJEU has been asked to translate the the world for detention inwards the Dublin III Regulation, inwards the pending Al Chodor case.
The judgment
Mr JN had made iii prior applications for asylum. They were all unsuccessful, but withal he was non removed from Dutch territory. Over a menstruum of 20 years, he accrued to a greater extent than than 20 convictions for criminal offences. The illustration did non concern detention for those criminal convictions, as such detention falls exterior the range of the Directive (unless, arguably, the criminal conviction is related to immigration offences: to a greater extent than on that betoken below). Rather it concerned detention on grounds of ‘public club too national security’, which the Dutch authorities imposed in low-cal of his criminal offences – but non as a penalization for them.
Obviously such detention is compatible inwards regulation alongside the Directive, which expressly provides for detention on such grounds. So Mr. JN instead argued that the relevant provision inwards the Directive itself was invalid. It should live noted that another pending case asks the CJEU whether 2 other grounds for detention inwards the Directive are invalid: verification of identity or nationality, too determining the elements on which the application is based.
The Court began its analysis past times reiterating its prior illustration police trace that the European Convention on Human Rights (ECHR), which includes rules on detention, does non bind the European Union as such. Instead, it assessed the validity of the clause inwards the Directive inwards low-cal of the European Union Charter of Fundamental Rights – although this did entail about assessment of the validity of that clause inwards low-cal of the ECHR as referred to inwards the Charter, as discussed below.
According to the Court, detention undoubtedly affects the liberty of the individual, as guaranteed past times Article 6 of the Charter. So the query is whether this particular the world for detention was justified, inwards low-cal of the full general essay for limiting Charter rights gear upward out inwards Article 52(1) of the Charter. This essay requires that limitations on Charter rights must: (a) live prescribed past times law; (b) non infringe the essence of the right; (c) live aimed at protecting an objective of full general interest, or the rights too freedoms of others; too (d) live proportionate – pregnant that they are appropriate too necessary to attain their objective.
Applying these tests, the Court get-go found that the possibility of detention on grounds of populace policy or national safety was prescribed past times law, since it was gear upward out inwards the Directive. It did non infringe the essence of the correct to liberty, since it was based on private behavior too applied inwards ‘exceptional circumstances’, circumscribed past times the diverse full general limits too guarantees relating to detention gear upward out inwards the Directive. Detention on grounds of populace club too national safety meets a populace interest, too moreover protects the correct to ‘security’ of others.
The Court’s most detailed reasoning thus concerned proportionality. Detention on populace club or national safety grounds was inherently ‘appropriate’ to the objective of ensuring populace protection. It was ‘necessary’ for a number of reasons, which the Court elaborated inwards about detail. All restrictions on liberty take maintain to live ‘strictly necessary’ too this particular the world to detain was ‘strictly circumscribed’ past times the overall legal framework: detention on such grounds had to live ‘require[d]’; detention must live provided for inwards national law; the full general limits too safeguards on detention inwards the Directive apply; the exception is limited past times international human rights ‘soft law’; too the concepts of ‘public policy’ too ‘national security’ had to live narrowly interpreted.
The Court explored the latter 2 points further. As regards international human rights ‘soft law’, it noted that inwards the Commission’s master copy proposal for the Directive, it referred to a Council of Europe Recommendation on detention of asylum-seekers, as good as UNHCR guidelines on detention. It too so applied about of the text of the latter guidelines: inwards particular detention of asylum-seekers must occur ‘only exceptionally’ inwards an ‘individual case’ as a ‘last resort’, where ‘necessary, reasonable too proportionate to a legitimate purpose’.
As for the detention grounds of ‘public policy’ too ‘national security’, the Court applied concluding year’s judgments inwards T too Zh too O (discussed here too here), inwards which it had ruled that ‘public policy’ exceptions inwards other European Union immigration too asylum legislation had to live narrowly interpreted, consistently alongside the narrow Definition of that exception inwards European Union gratuitous movement law. In JN it said the same for the national safety exception as regards detaining asylum-seekers, too furthermore as regards the grounds for entry bans longer than 5 years, as gear upward out inwards the Returns Directive. So the exceptions apply only where in that place is a genuine criminal or safety threat, non where in that place the authorities simply deem it expedient to detain people.
Next, the Court applied its interpretation of the Directive to the facts of this case. He was detained due to his prior offences too pending expulsion order, which was attached to a ten-year entry ban. Since entry bans for longer than 5 years tin only live issued on grounds of a ‘serious threat to populace policy…public safety or national security’ it followed that detention could live ordered inwards the same circumstances – as long as proportionality was ‘strictly observed’ too those reasons are soundless valid.
The Court also made clear that the pending expulsion club could non lapse during consideration of JN’s asylum application. The national illustration police trace which provided for it to lapse had to live disapplied past times the national court, inwards club to ensure the effectiveness of the Returns Directive (ie the expulsion of irregular migrants). So Mr JN was a variety of ‘Schrodinger’s migrant’: allowed to rest on the territory spell his asylum application was considered (and so bailiwick to the detention rules inwards the reception weather Directive); but also simultaneously bailiwick to an expulsion club nether the Returns Directive, which was only temporarily suspended – too which continued to justify (in part) his detention nether the formally distinct gear upward of asylum rules.
Finally, the Court concluded past times looking at the seat nether the ECHR, inwards the context of the Charter. The sometime was relevant to the latter because Article 52(3) of the Charter says that the ‘meaning too scope’ of Charter rights which ‘correspond’ to ECHR rights is the same as those ECHR rights. However, the Court easily dismissed the ECHR declaration past times pointing out that inwards the recent judgment of the European Court of Human Rights (ECtHR) inwards Nabil v Hungary, an asylum seeker could soundless live detained pursuant to Article 5(1)(f) of the Convention (which allows detention ‘where activity is beingness taken alongside a persuasion to deportation’) because rejection of an asylum application would entail enforcement of an expulsion order. But the Court did refer to the safeguards inwards other ECtHR illustration law: in that place tin live ‘no chemical constituent of bad faith or deception past times the authorities’, too detention must live proportionate.
Comments
As the CJEU’s get-go proper judgment on detention of asylum-seekers, the JN ruling may larn seminal. That’s non because of the facts of this particular case: alongside iii failed asylum applications too over 20 criminal convictions to his name, the grounds to detain Mr JN are stronger than they are for many other asylum-seekers. But much of what the Court said inwards its judgment has potentially wider impact.
I volition analyse that possible impact from 5 angles: (a) the ‘public policy too national security’ the world of detention; (b) the application of other grounds for detention; (c) the Court’s utilisation of ‘soft’ human rights law; (d) the interpretation of the Returns Directive; too (e) the role of police trace inwards the evolution of the EU’s asylum regime to a greater extent than generally.
The ‘public policy too national security’ the world of detention
The Court made clear that the populace policy too national safety grounds for detention must live narrowly interpreted, too interpreted consistently alongside European Union gratuitous movement law. Mr JN’s detention was justified because of his prior criminal offences inwards conjunction alongside the underlying expulsion order. But are these tests cumulative or alternative? And are they exhaustive?
The Court does non address these questions. However, the requirement to translate these grounds consistently alongside European Union gratuitous movement police trace suggests that the 2 tests are exhaustive. Arguably criminal offences lonely could justify detention, inwards low-cal of the nature of this the world for detention. But the regulation of proportionality must hateful that detention would live harder to justify inwards the absence of an expulsion decision, too that the seriousness too number of the offences are also highly relevant. (Remember that detention nether the Directive is distinct from detention ordered as a resultant of a criminal conviction, or pre-trial detention linked to the criminal proceedings).
Conversely, it seems unlikely that an expulsion determination lonely could justify detention on this ground. If that were permitted, it would live also slow for Member US to justify the detention of almost all asylum-seekers, past times issuing irregular migrants alongside expulsion orders as shortly as they are apprehended, earlier they tin apply for asylum. This would undercut the Court’s emphasis on the exceptional nature of detention of asylum-seekers. Furthermore, the Directive has a lex specialis on detaining asylum-seekers who had been bailiwick to expulsion orders: the ‘last-minute application’ clause. If the drafters of the Directive had intended a broader possibility to detain asylum-seekers simply because they were bailiwick to expulsion orders, they would take maintain drafted that clause differently.
Other grounds for detention
While most of the JN judgment focusses on the particular ‘public policy too national security’ the world for detention of asylum-seekers, about of the Court’s reasoning casts low-cal past times analogy on the validity too interpretation of the other 5 detention grounds.
First of all, each of the other 5 grounds for detention of asylum-seekers restricts their liberty, so must live also justified nether Article 52(1) of the Charter. Applying the Court’s analysis inwards the JN judgment past times analogy, each of those other 5 grounds is ‘prescribed past times law’, at to the lowest degree according to the CJEU’s approach to that concept. However, the other grounds are non so closely linked to private behavior of the individual concerned, although arguably the ‘last-minute application’ too Dublin III ‘serious run a peril of absconding’ the world take maintain a closer link than the others (the Dublin III Regulation refers to ‘reasons inwards an private case’ to advise that an asylum-seeker may abscond). Nor is it clear how the ‘exceptional circumstances’ concept applies to the other grounds, although they are all also bailiwick to the full general limits too guarantees relating to detention gear upward out inwards the Directive.
The populace involvement arguments for the other grounds of detention are less obvious, although the Court could likely discovery them: the efficiency of the asylum system, too (as regards the entry command too ‘last-minute application’ grounds) immigration command (see the Schwarz judgment past times analogy). But the restrictions on liberty are non so apparently appropriate as is the illustration for populace policy too national safety (except as regards the ‘last-minute application’ clause, provided that in that place was an effective chance to apply for asylum).
As for necessity, the Court applied the ‘strictly necessary’ dominion to all deprivations of liberty. Furthermore, the other grounds for detention are also bailiwick to the full general limits too safeguards gear upward inwards the Directive, too the dominion that detention must live provided for inwards national law. However, non all of the specific features which the Court discussed inwards JN apply to the other grounds for detention: in that place is no obligation that detention on the other grounds live ‘required’, too the interpretation of those other grounds nether European Union police trace too international human rights soft police trace volition necessarily live different. That brings us neatly to the Court’s innovative utilisation of that soft law.
The Court’s utilisation of ‘soft’ human rights law
First of all, the Court’s utilisation of international human rights ‘soft law’ is remarkable inwards itself. It’s only taken line of piece of job concern human relationship of such rules in 1 lawsuit earlier inwards the immigration too asylum context: the El Dridl case, where the preamble to the Returns Directive referred to a Council of Europe Recommendation on detention of irregular migrants. But inwards JN, the explanatory memorandum to the original proposal is plenty to trigger incorporation of the soft police trace into the Court’s interpretation of the Directive.
It’s non clear if this may take maintain broader implications beyond the reception weather Directive. I’ve checked the master copy proposals for the other second-phase asylum laws, too none of them refer to international soft police trace as far as I tin see. (But banking company annotation that the preambles to the legislation create refer to the Geneva Convention on refugee status, as good as the United Nations Convention on the Rights of the Child).
However, it does take maintain a number of implications for the interpretation of the reception weather Directive. I take maintain read through both ‘soft law’ measures invoked past times the Court, too noted about telephone commutation points where they could live useful inwards interpreting the Directive. For the sake of readability, I take maintain pose about of the particular inwards an Annex to this weblog post. But hither are the highlights.
The soft police trace gives to a greater extent than precise explanations for detention on grounds of determining nationality or identity, or to determine elements of the claim. Influenza A virus subtype H5N1 crucial betoken hither is a detailed interpretation of Article 31 of the Geneva Convention, which states that refugees ‘coming directly’ from persecution cannot live penalised for irregular entry if they breach immigration police trace for ‘good cause’ too contact the host State’s authorities ‘without delay’. This is a big number inwards practice.
Two years ago, inwards its judgment inwards Qurbani (discussed here), the CJEU said it would non translate Article 31 of the Convention, unless European Union legislation referred to it. Well, the preamble to the second-phase reception weather Directive does refer to it, inwards the context of detention (so does the Dublin III Regulation, too European Union anti-smuggling law). Since criminal penalties for irregular entry are affected past times the Returns Directive (according to the CJEU’s illustration law), it must follow that they are also affected past times European Union asylum law, a fortiori because the European Union legislators expressly refer to Article 31 of the Convention.
What does this hateful on the ground? While the JN judgment did non concern Article 31, the CJEU's willingness to apply the UNHCR guidelines on detention agency that those guidelines could live relevant to its interpretation. First of all, those guidelines say that asylum-seekers are covered past times Article 31, fifty-fifty if their refugee status has non yet been established. Next, the 1999 version of the guidelines say that ‘coming directly’ also covers cases where asylum-seekers travelled through other countries. The ‘good cause’ dominion must live interpreted inwards context, too in that place is no strict fourth dimension boundary for contacting the authorities. Between them, these interpretations of Article 31 should boundary asylum-seekers’ criminal convictions for irregular entry considerably.
Furthermore, the soft police trace is relevant non only to the grounds for detention, but also alternatives to detention, judicial review of too the weather for detention. On that latter point, it mentions the practise of organized religious belief inwards detention, as good as a broader mensurate of contact alongside the exterior world. Asylum-seekers should take maintain a complaints physical care for concerning detention conditions. There are to a greater extent than details on detention of vulnerable persons.
On that point, I tin never go past times on an chance to comment on the quite obnoxious derogations permitted inwards the Directive, allowing Member US to waive the requirements for split accommodation for detained families too detaining women separately from unrelated men, inwards ‘duly justified’ cases at the border. In low-cal of the Charter rights to privacy, the rights of the little fry too the EU’s imminent signature of the Council of Europe Convention on violence against women (on which, consider here), these derogations are sure either invalid or tin only apply inwards cases of force majeure.
Interpretation of the Returns Directive
The Returns Directive says nil explicitly on the lapse of render decisions. This judgment is the get-go fourth dimension the CJEU has ruled on the issue. While the Court only addresses the specific betoken of render decisions lapsing due to an asylum application, it mightiness live argued past times analogy that the lapse of render decisions inwards other circumstances is also incompatible alongside the Returns Directive. Although Member US are allowed to gear upward higher standards than the Returns Directive, that only applies if those standards are soundless ‘compatible’ alongside the Directive. As nosotros saw inwards the Zaizoune judgment (discussed here), such higher standards cannot amount to a waiver of the obligation to render people. It’s implicit inwards the JN ruling that every bit it’s non compatible alongside the Directive for render decisions to lapse as shortly as an asylum application is made.
The role of police trace inwards the evolution of the EU’s asylum regime
The JN ruling came as the European Union took farther measures to cut back the numbers coming to or staying on the territory – most notably past times reaching a controversial organization alongside Turkey (on which, consider here). Overall, the judgment sends a clear signal that the CJEU is going to assert its legal potency to ensure that measures taken to bargain alongside the refugee too migration crisis are compatible alongside human rights, inwards particular as regards asylum-seekers – although conversely the Court is great to strengthen the obligation to expel those who take maintain non established whatsoever demand to stay.
More broadly, the EU’s refugee policies are apparently inwards a province of deep crisis. Rather than go out the number alone to populists at the European Union or national level, it would live amend for the European Union enquire a panel of respected international experts to recommend (quickly) how the EU, inwards the wider international context, should bargain alongside the crisis. I would nominate (say) Mary Robinson, David Miliband, Madeline Albright too Carl Bildt for this task. In whatsoever event, nosotros cannot go on as nosotros are: the European Union needs an asylum policy that is simultaneously fair, humane, realistic too coherent; but it is falling far curt of that at the moment.
Barnard & Peers: chapter 26
JHA4: chapter I:5
Photo credit: UNHCR, B. Szandelszky
Annex
Council of Europe Committee of Ministers Recommendation
Point 1 – the Definition of ‘detention’ is taken implicitly from ECHR illustration law, too is to a greater extent than precise than inwards the Directive
Point 3 – a full general provision says ‘the aim [of detention] is non to penalise asylum-seekers’. The the world of detention to determine nationality or identity is explained inwards to a greater extent than particular than nether the Directive. It applies ‘in particular when asylum seekers take maintain destroyed their move or identity documents or used fraudulent documents inwards club to mislead the authorities of the host state’. The the world of detention to determine elements of the asylum claim is less detailed than nether the Directive, which contains the next additional words: ‘in particular where in that place is a run a peril of absconding of the applicant’.
There is no parallel to 2 of the grounds for detention nether the Directive: nether the Dublin physical care for (ie where in that place is a ‘significant run a peril of absconding’ during that process); too where in that place is an asylum application purely to forestall an expulsion decision, if the asylum-seeker had previously had an chance to apply for asylum.
Point four – says in that place must live a ‘careful’ exam of the grounds for detention inwards private cases, too detention shall live ‘non-arbitrary’.
Point 5 – discusses grounds for judicial review, which are non expressly mentioned inwards the Directive. If a maximum detention duration has non been provided for past times law, the duration of the detention should shape business office of the review past times the above-mentioned court (see the Mahdi judgment on the Returns Directive past times analogy).
Point 6 – ‘Alternative too non-custodial measures…should live considered before resorting to measures of detention’. The Directive does non province this expressly.
Point seven - Measures of detention should non constitute an obstruction to asylum seekers beingness able to submit too pursue their application for asylum.
Point 8 - Asylum applications from persons inwards detention should live prioritized for the purposes of processing. This is peculiarly the illustration where a individual is held inwards detention because of reasons resulting from the police trace pertaining to foreigners.
Conditions of detention
Point xv - Detained asylum seekers should live allowed to practise their organized religious belief too to discovery whatsoever special diet inwards accordance alongside their religion.
18. Asylum seekers should live allowed to contact and, wherever possible, have visits from relatives, friends, social too religious counsellors, non-governmental organisations active inwards the acre of human rights or inwards the protection of refugees or asylum seekers, too to found communication alongside the exterior world. Note that this is wider than Article 10(4) of the Directive.
19. Asylum seekers should live guaranteed access to a complaints machinery concerning the weather of detention. This number is non mentioned inwards the Directive.
22. If minors are detained, they must non live held nether prison-like conditions…If [placing exterior detention] proves impossible, special arrangements must live made.
UNHCR guidelines
Guideline 2 - Interprets Article 31 of Geneva Convention – also referred to inwards preamble to the Directive. Refers also to UNHCR Executive Committee conclusions for to a greater extent than on when detention is ‘necessary’ nether Article 31 of the Convention
Article 31 applies also to asylum-seekers, non exactly recognised refugees; 1999 version of conclusions: (point 4) ‘coming directly’ clause also covers cases where the asylum seeker transited through other US on way to State where they are at nowadays present. No strict fourth dimension boundary to the phrase ‘without delay’. ‘Good cause’ – must hold off at all the circumstances
Guideline 3 – must consider alternatives to detention get-go – same as inwards CoE recommendation.
Grounds for detention (i) to forestall absconding (matches Dublin III Regulation to about extent); (ii) manifestly unfounded or abusive claims (no stand upward for alongside Directive); (iii) to verify identity or security; no reference to nationality (so non as consummate a correspondence as CJEU suggests); (iv) elements of the claim – explained inwards particular ‘within the context of a preliminary interview' (with farther clarification); (v) populace wellness (no stand upward for inwards the Directive); (vi) national security; or (vii) a 'last minute' application to frustrate expulsion (no stand upward for inwards the Directive)
Point (d) of Article 8(3) of the Directive doesn’t appear here; ‘procedure to come inwards the territory’ does non apply.
General dominion – cannot utilisation detention as a deterrent, or to dissuade continuing alongside claims; non punitive or disciplinary, or for breach of rules at reception centres or camps.
Guideline 4.3 – to a greater extent than detailed rules on alternatives to detention than inwards Article 8(4) of the Directive.
Guideline 5 - detention cannot live discriminatory
Guideline 6 - in that place must live fourth dimension limits on detention
Guideline 7(iv) – correct of asylum-seeker or lawyer to attend hearing re review of detention; 7(v) – authorities take maintain burden of proof re detention; 7(vi) non an obstruction to pursue the asylum application (as inwards CoE recommendation).
Guideline 8 – similar CoE Recommendation: religious diet, wider access to exterior world; to a greater extent than details on basic necessities than inwards Directive (ie ‘dignity’); no prison theatre uniforms or shackling; also refers to complaints physical care for (like CoE Recommendation) but goes into farther particular than that Recommendation
Guideline ix – to a greater extent than details on vulnerable persons than inwards Art 11(1) of the Directive
