Tommaso Poli, LL.M. candidate in Human Rights and Humanitarian Law at the University of Essex, School of Law.
The detention of those seeking asylum is a contentious issue within immigration law. While not initially covered by the European Common Asylum System (CEAS), it is now addressed in several of the second-phase CEAS measures. These measures include the Asylum Procedures Directive, the Reception Conditions Directive, the Qualification Directive, the Dublin Regulation, and the EURODAC Regulation.
Specifically, the second-phase CEAS measures provide comprehensive rules regarding the detention of asylum-seekers in two scenarios: a) general rules outlined in the Reception Conditions Directive, which have been subject to an initial ECJ ruling in 2016 and a more recent Advocate-General opinion, and b) specific rules within the Dublin III Regulation that pertain to asylum-seekers whose applications fall under the responsibility of another Member State according to those rules. The ECJ recently issued its first interpretation of the latter provisions in its judgment on the Al Chodor case.
This analysis will demonstrate the Court’s firm stance on the importance of the rule of law in detention cases. Furthermore, its ruling has implications not only for Dublin cases but also for the detention of asylum-seekers and irregular migrants in other contexts.
Article 28 of the Dublin III Regulation outlines the rules for detaining asylum-seekers within the Dublin process. Article 28(1) explicitly prohibits detaining asylum seekers solely based on their involvement in the Dublin process. Article 28(2) then establishes the sole grounds for detention: a “significant risk of absconding.” If this risk exists, “Member States may detain the person concerned to secure transfer procedures” according to Dublin rules, “based on an individual assessment and only insofar as detention is proportional, and other less coercive alternative measures cannot be applied effectively.”
Article 28(3) details time limits for “Dublin detention,” a subject currently under consideration in the pending Khir Amayry case. Lastly, Article 28(4) clarifies that the general guarantees regarding procedural rights and detention conditions outlined in the Reception Conditions Directive also apply to asylum-seekers detained under the Dublin rules.
Al Chodor centered on interpreting the grounds for detention under Article 28(2): what constitutes a “serious risk of absconding”? The Dublin III Regulation provides some clarification by defining “risk of absconding” as “the existence of reasons in an individual case, based on objective criteria defined by law, to believe that an applicant or a third-country national or a stateless person who is subject to a transfer procedure may abscond” (Article 2(n) of the Regulation).
Facts
This case involves an Iraqi man and his two young children traveling from Hungary to the Czech Republic without identification documents, aiming to reunite with family in Germany. Upon stopping the Al Chodors, the Czech Foreigners Police Section (FPS) consulted the Eurodac database and discovered a Hungarian asylum application filed by them. Consequently, the Al Chodors were subject to the transfer procedure under Article 18(1)(b) of the Dublin III Regulation. The FPS determined a “serious risk of absconding” existed due to the Al Chodors lacking both a residence permit and accommodation in the Czech Republic while awaiting transfer to Hungary.
Therefore, they detained the Al Chodors for 30 days pending transfer, as per Paragraph 129(1) of the national law on the residence of foreign nationals, in conjunction with Article 28(2) of the Dublin III Regulation. The Al Chodors challenged the detention order in the regional Court. This Court overturned the decision, stating Czech legislation does not establish objective criteria for assessing the risk of absconding according to Article 2(n) of the Dublin III Regulation, thus rendering the decision unlawful. The Al Chodors were released from custody following the annulment.
The FPS appealed this decision on a point of law to the Supreme Administrative Court. They argued that Article 28(2) of the Dublin III Regulation cannot be deemed inapplicable solely due to the absence of objective criteria defining the risk of absconding in Czech legislation. This provision, they argued, sets three conditions for assessing absconding risk: individual assessment considering the case’s circumstances, proportionality of detention, and the infeasibility of less coercive measures. The FPS claimed to have met these conditions.
The Supreme Administrative Court was unsure if their established case-law recognizing objective criteria for detaining individuals under Paragraph 129 of the Law on the residence of foreign nationals satisfied the “defined by law” requirement in Article 2(n) of the Dublin III Regulation. This uncertainty stemmed from the case-law upholding consistent, non-arbitrary administrative practice by the FPS, characterized by predictability and individual case assessments. Thus, the Court referred the case to the European Court of Justice for a preliminary ruling. They questioned whether Article 2(n) and 28(2) of the Dublin III Regulation, when considered together, necessitate Member States to establish objective criteria for suspecting an international protection applicant subject to a transfer procedure might abscond within their national law. Additionally, they asked whether the absence of such criteria in national law renders Article 28(2) of the Regulation inapplicable.
Judgment
Firstly, the Court of Justice determined that Article 2(n) of the Dublin III Regulation requires each Member State’s national law to define objective criteria for establishing the existence of an absconding risk (paragraph 27-28). Next, the Court addressed whether the term “law” encompasses established case-law. They reaffirmed that interpreting EU law provisions requires considering not just the wording, but also its context and the objectives of the rules it is part of (judgment of 26 May 2016, Envirotec Denmark, paragraph 27).
Regarding the overall framework of the rules that Article 2(n) of the Dublin III Regulation falls under, the Court referenced recital 9 of that Regulation. They stated the Regulation aims to improve, based on experience, not only the Dublin system’s effectiveness but also the fundamental rights protection granted to applicants within that system. This high level of protection is evident in Articles 28 and 2(n) of the Regulation when read together. Concerning the objective of Article 2(n) in conjunction with Article 28(2) of the Dublin III Regulation, the Court highlighted that by permitting the detention of an applicant to ensure transfer procedures under the Regulation when a significant absconding risk exists, these provisions limit the exercise of the fundamental right to liberty enshrined in Article 6 of the Charter.
In this regard, Article 52(1) of the Charter clearly states that any limitations on this right must be legally stipulated, respect the essence of the right, and adhere to the proportionality principle. Notably, the European Court of Justice aligned its interpretation with the European Court of Human Rights (ECtHR). They reaffirmed that any deprivation of liberty must be lawful, not just by having a basis in national law, but also in terms of the law’s quality. This implies national laws authorizing deprivation of liberty must be adequately accessible, precise, and foreseeable in their application to prevent arbitrariness (judgment of the European Court of Human Rights of 21 October 2013, Del Río Prada v Spain, paragraph 125).
The Court concluded by stating that considering the purpose of the provisions in question and the high level of protection implied by their context, only a generally applicable provision could fulfill the requirements of clarity, predictability, accessibility, and especially protection against arbitrariness. Consequently, Article 2(n) and 28(2) of the Dublin III Regulation, read together, necessitate that the objective criteria underpinning the belief that an applicant might abscond be established in a binding provision of general application. The detention was unlawful due to the absence of such criteria.
Comments
This ruling likely impacts the interpretation of other EU measures related to immigration detention. The Returns Directive, addressing the detention of irregular migrants (distinct from asylum seekers), includes “risk of absconding” as both a grounds for detention and for refusing an irregular migrant’s request for voluntary departure. This term is defined identically in both the Returns Directive and the Dublin III Regulation. Regarding asylum seekers detained on grounds other than the Dublin process, “risk of absconding” is part of one detention ground under the Reception Conditions Directive but lacks further definition. However, a recent Advocate-General opinion notes (paragraph 73) that this clause aims to prevent “arbitrary” detention, a key aspect of the Al Chodor judgment’s reasoning. This suggests a consistent interpretation across the two asylum laws. Therefore, the Court’s judgment arguably applies not only to Dublin cases but to any immigration detention of non-EU citizens in any Member State bound by the relevant EU legislation.
Second, this ruling reinforces the principle that although regulations generally have immediate effect in national legal systems without requiring national authorities to implement them, some provisions may require Member States to adopt implementing measures (judgment of 14 April 2011, Vlaamse Dierenartsenvereniging and Janssens, paragraphs 47 and 48).
Most importantly, the Court reaffirmed the primacy of Human Rights law in implementing EU asylum law, emphasizing that the development of EU asylum law relies on its compliance with Human Rights law. The ECJ’s ruling in this case reflects the ECtHR’s interpretation of “arbitrariness” in detention, which extends beyond inconsistencies with national law. Notably, it asserts that even if lawful under domestic law, deprivation of liberty can still be arbitrary and thus violate the general principles, explicit or implied, within the Convention (judgment of the European Court of Human Rights of 9 July 2009, Mooren v. Germany, paragraphs 73-77).
The Court’s ruling also aligns with UN human rights standards. The Human Rights Committee’s General Comment No. 31, concerning the general legal obligations imposed on States party to the UN Covenant on Civil and Political Rights (to which all EU Member States are party), states that “in no case may the restrictions be applied or invoked in a manner that would impair the essence of a Covenant right” (paragraph 4). Additionally, the Human Rights Committee’s General Comment No. 35 points out that “arbitrariness is not to be equated with ‘against the law,’ but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality” (paragraph 12, see also HRC, Van Alphen v. Netherlands, paragraph 5.8).
Lastly, the Court’s ruling confirmed the constitutional significance of the Charter of Fundamental Rights of the European Union. This holds particular importance currently, as with any constitutional instrument, reaffirming its principles and values becomes crucial during challenging times for society (such as the perceived “migration crisis” in Europe).
Similarly, Article 52 of the EU Charter states that limitations can never be applied or invoked in a way that undermines the essence of a Charter right. In the context of detention, it’s even more critical to affirm that essential elements ensuring this right, like the requirement for lawfulness and non-arbitrariness for the right to liberty, cannot be disregarded under any circumstances. The Al Chodor ruling substantiates this fundamental principle.
Barnard & Peers: chapter 26
JHA4: chapter I:5
Photo: Amygdaleza detention centre in Greece, credit: www.metamute.org