Steve Peers

The detention of migrants is a contentious issue in immigration and asylum law. This involves detaining individuals who haven’t committed crimes other than potential immigration violations. They are held during their asylum application process or while awaiting deportation. The EU has established regulations on detaining irregular migrants through the Returns Directive. For insight into the Court of Justice of the European Union’s (CJEU) interpretation of these regulations, refer to the journal article on humane treatment versus efficient removal. Recently, rules concerning asylum-seeker detention have been introduced through the second-phase Directive on reception conditions. However, the UK and Ireland opted out of both directives.

The CJEU recently issued its first ruling on these new regulations in the JN judgment, marking the Court’s first interpretation of any aspect within the second-phase legislation. This ruling follows another judgment concerning the rights of individuals under subsidiary protection and precedes other pending cases. The Court addressed several key interpretations within the detention rules while leaving some matters unresolved.

Generally, the Court restricted the detention of asylum-seekers based on “national security or public order.” This ruling implicitly limits detaining asylum-seekers on other grounds. However, the judgment strengthens the Returns Directive regulations concerning the detention and expulsion of irregular migrants. Surprisingly, the Court is open to using “soft law” on human rights to interpret EU law. While not explicitly mentioning the ongoing “refugee crisis,” the judgment implicitly rejects using widespread asylum-seeker detention as a solution.

Background

The initial reception conditions Directive, adopted in 2003 and applicable from 2005, provided limited information regarding asylum-seeker detention. While the subsequent Returns Directive regulated irregular migrant detention, the CJEU clarified in the Kadzoev and Arslan cases that those regulations didn’t apply to asylum-seekers. This is because EU asylum legislation grants asylum-seekers the right to remain in the territory until a first-instance decision is made on their application. Conversely, the Returns Directive mandates the prompt removal of irregular migrants. The Court clarified the relationship between these two sets of regulations in Arslan: an irregular migrant detained under the Returns Directive couldn’t evade detention by applying for asylum. Essentially, the JN judgment revisits this issue, prompting the Court to reconsider its stance given the newly implemented detailed regulations on detaining asylum-seekers.

What are those regulations? The second-phase reception conditions Directive upholds the prior ban on detaining individuals solely for seeking asylum. The Directive permits detaining asylum-seekers if “necessary” after “an individual assessment of each case…if other less coercive alternative measures cannot be applied effectively.” Detention is permissible “only” on six grounds: (a) to ascertain or confirm an asylum-seeker’s identity or nationality; (b) to ascertain elements of the application, particularly when there’s a risk of absconding; (c) to decide on entry; (d) when detaining the asylum-seeker for planned expulsion under the Returns Directive, with objective grounds indicating they sought asylum to “delay or frustrate” expulsion despite having access to the asylum procedure; (e) to protect national security or public order; or (f) in accordance with the Dublin III Regulation on allocating asylum-seekers among Member States, which allows detention if there’s a “significant risk of absconding” before a Dublin transfer.

These detention grounds must be “laid down in national law,” which must also outline alternatives to detention. Detailed regulations exist regarding procedural guarantees and conditions for detention. These regulations also apply to Dublin cases, and the Dublin Regulation sets specific rules for detention length. The CJEU has been asked to interpret the grounds for detention within the Dublin III Regulation in the pending Al Chodor case.

The judgment

Mr. JN had submitted three previous asylum applications, all unsuccessful. However, he remained in Dutch territory. Over 20 years, he accumulated over 20 criminal convictions. The case didn’t focus on detention for these convictions, as such detention falls outside the Directive’s scope (unless the conviction relates to immigration offenses). Instead, it involved detention based on “public order and national security,” imposed by the Dutch government due to, but not as a punishment for, his criminal history.

Such detention aligns with the Directive, which explicitly allows detention on those grounds. Consequently, Mr. JN argued that the relevant Directive provision was invalid. It’s worth noting that another pending case questions the validity of two other grounds for detention in the Directive: verifying identity or nationality and establishing the application’s basis.

The Court’s analysis began by reaffirming its previous rulings that the European Convention on Human Rights (ECHR), including detention rules, doesn’t bind the EU. Instead, it assessed the Directive clause’s validity using the EU Charter of Fundamental Rights. This assessment involved examining the clause’s validity considering the ECHR referenced in the Charter.

According to the Court, detention impacts individual liberty, guaranteed by Article 6 of the Charter. The question is whether this specific ground for detention is justified based on Article 52(1) of the Charter’s general test for limiting Charter rights. This test requires limitations on Charter rights to be: (a) lawfully established; (b) not undermining the right’s essence; (c) aimed at safeguarding the general interest or others’ rights and freedoms; and (d) proportionate, meaning appropriate and necessary for achieving their objective.

Applying these criteria, the Court first determined that detaining someone based on public policy or national security was lawful, as outlined in the Directive. It didn’t infringe upon the right to liberty because it stemmed from individual conduct and applied to “exceptional circumstances” limited by the Directive’s general detention limits and guarantees. Detention for public order and national security reasons serves a public interest and protects the “security” of others.

The Court’s most detailed reasoning involved proportionality. Detention based on public order or national security was inherently “appropriate” for ensuring public protection. It was “necessary” for several reasons, which the Court elaborated upon. All liberty restrictions must be “strictly necessary,” and this specific ground for detention was “strictly circumscribed” by the overall legal framework: detention on such grounds had to be “required,” provided for in national law, subject to the Directive’s general limitations and detention safeguards, limited by international human rights “soft law,” and applied with a narrow interpretation of “public policy” and “national security.”

The Court delved further into the latter two points. Regarding international human rights “soft law,” it highlighted that the Commission’s initial Directive proposal referenced a Council of Europe Recommendation on detaining asylum-seekers and UNHCR guidelines on detention. It then applied aspects of these guidelines, particularly that asylum-seeker detention should be “only exceptionally” in an “individual case” as a “last resort,” when “necessary, reasonable and proportionate to a legitimate purpose.”

Concerning “public policy” and “national security” as grounds for detention, the Court applied last year’s judgments in T and Zh and O. It had ruled that “public policy” exceptions in other EU immigration and asylum laws required a narrow interpretation consistent with the narrow definition of that exception in EU free movement law. In JN, it applied the same logic to the national security exception for detaining asylum-seekers and the grounds for entry bans exceeding five years under the Returns Directive. Therefore, these exceptions apply only to genuine criminal or security threats, not when authorities simply deem detention expedient.

Next, the Court applied its interpretation of the Directive to this case. Mr. JN was detained for previous offenses and a pending expulsion order with a ten-year entry ban. Given that entry bans over five years require a “serious threat to public policy…public security or national security,” the Court concluded that detention under the same circumstances was permissible as long as proportionality was “strictly observed” and those reasons remained valid.

The Court also clarified that the pending expulsion order couldn’t lapse during the review of JN’s asylum application. National case law allowing it to lapse had to be disregarded by the national court to ensure the Returns Directive’s effectiveness (i.e., expelling irregular migrants). This made Mr. JN a “Schrödinger’s migrant,” allowed to stay while his asylum application was processed (subject to the reception conditions Directive’s detention rules) but simultaneously subject to a temporarily suspended expulsion order under the Returns Directive, which partially justified his detention under the distinct set of asylum rules.

Finally, the Court examined the situation under the ECHR within the Charter’s context. The former’s relevance to the latter stems from Article 52(3) of the Charter, which states that the “meaning and scope” of Charter rights “corresponding” to ECHR rights are identical. However, the Court easily dismissed the ECHR argument by citing the recent European Court of Human Rights (ECtHR) judgment in Nabil v. Hungary. This judgment concluded that an asylum seeker could be detained under Article 5(1)(f) of the Convention (allowing detention “where action is being taken with a view to deportation”) because rejecting an asylum application would necessitate enforcing an expulsion order. However, the Court referenced safeguards from other ECtHR case law: there can be “no element of bad faith or deception by the authorities,” and detention must be proportionate.

Comments

The JN ruling, the CJEU’s first substantial judgment on detaining asylum-seekers, could become a landmark case. This isn’t solely because of this case’s specifics: Mr. JN’s history of three failed asylum applications and over 20 criminal convictions presents stronger grounds for detention than many other asylum-seekers. However, much of the Court’s reasoning has broader implications.

This analysis will cover the potential impact from five perspectives: (a) the “public policy and national security” ground for detention; (b) applying other grounds for detention; (c) the Court’s use of “soft” human rights law; (d) interpreting the Returns Directive; and (e) the role of law in shaping the EU’s asylum system.

The ‘public policy and national security’ ground of detention

The Court emphasized narrowly interpreting the grounds of public policy and national security for detention, consistently with EU free movement law. Mr. JN’s detention was justified due to his criminal history combined with the underlying expulsion order. However, are these criteria cumulative or alternative? Are they exhaustive?

The Court doesn’t address these questions directly. However, the requirement to align these grounds with EU free movement law implies that both criteria are exhaustive. Criminal offenses alone could potentially justify detention, given the nature of this detention ground. However, proportionality necessitates that detention be harder to justify without an expulsion decision. The severity and number of offenses are also crucial factors (keeping in mind that detention under the Directive differs from detention resulting from a criminal conviction or pre-trial detention).

Conversely, an expulsion decision alone likely wouldn’t justify detention on this ground. If allowed, it would enable Member States to justify detaining almost all asylum-seekers by issuing expulsion orders upon apprehension, preventing them from seeking asylum. This undermines the Court’s emphasis on the exceptional nature of asylum-seeker detention. Additionally, the Directive includes a lex specialis on detaining asylum-seekers with prior expulsion orders: the “last-minute application” clause. If the Directive’s drafters intended a broader possibility of detaining asylum-seekers solely due to expulsion orders, they would have formulated this clause differently.

Other grounds for detention

While the JN judgment primarily centers on the “public policy and national security” ground for detaining asylum-seekers, some reasoning sheds light on the validity and interpretation of the other five grounds.

Firstly, all five grounds restrict liberty, requiring justification under Article 52(1) of the Charter. Applying the Court’s JN judgment analysis, each ground is “prescribed by law,” at least according to the CJEU’s approach. However, the other grounds aren’t as closely tied to the individual’s conduct, although the “last-minute application” and Dublin III “serious risk of absconding” grounds are more closely linked than others (the Dublin III Regulation mentions “reasons in an individual case” to suggest potential absconding). It’s unclear how “exceptional circumstances” apply to the other grounds, even though they are all subject to the Directive’s general detention limitations and guarantees.

The public interest arguments for the remaining detention grounds are less clear-cut, though the Court could likely find them: the asylum system’s efficiency and, for entry control and “last-minute application” grounds, immigration control (see the Schwarz judgment for comparison). However, the liberty restrictions aren’t as inherently appropriate as in the case of public policy and national security (except for the “last-minute application” clause, provided there was a genuine opportunity to seek asylum).

Regarding necessity, the Court applied the “strictly necessary” rule to all instances of liberty deprivation. Moreover, all grounds for detention are subject to the Directive’s general limitations, safeguards, and the rule requiring national law to provide for detention. However, not all aspects discussed in JN apply to other grounds: detention on other grounds doesn’t need to be “required,” and the interpretation of those grounds under EU law and international human rights “soft law” will differ. This leads to the Court’s innovative use of “soft law.”

The Court’s use of ‘soft’ human rights law

The Court’s use of international human rights “soft law” is noteworthy. It’s only the second time such rules have been considered in immigration and asylum cases, following the El Dridl case, where the Returns Directive’s preamble referenced a Council of Europe Recommendation on detaining irregular migrants. In JN, the explanatory memorandum of the initial proposal is enough to incorporate “soft law” into the Court’s Directive interpretation.

It’s unclear whether this has broader implications beyond the reception conditions Directive. Reviewing the initial proposals for other second-phase asylum laws reveals no references to international “soft law.” However, note that the legislation preambles reference the Geneva Convention on refugee status and the UN Convention on the Rights of the Child.

However, this has implications for interpreting the reception conditions Directive. Examining both “soft law” measures invoked by the Court reveals key points for interpreting the Directive. For brevity, details are in the Annex, but here are the main points.

The “soft law” provides more specific explanations for detention based on determining nationality or identity or establishing the claim’s elements. One crucial aspect is interpreting Article 31 of the Geneva Convention, stating that refugees “coming directly” from persecution can’t be penalized for irregular entry if they breached immigration law for “good cause” and contacted the host state’s authorities “without delay.” This is a significant practical issue.

Two years ago, the CJEU, in its Qurbani judgment, stated it wouldn’t interpret Article 31 of the Convention unless EU legislation referenced it. The second-phase reception conditions Directive’s preamble does reference it regarding detention, as do the Dublin III Regulation and EU anti-smuggling law. Since the Returns Directive (according to CJEU case law) impacts criminal penalties for irregular entry, they must also be affected by EU asylum law, particularly since EU legislators explicitly mention Article 31 of the Convention.

What are the practical implications? While the JN judgment didn’t concern Article 31, the CJEU’s willingness to apply UNHCR guidelines on detention suggests those guidelines could be relevant. First, these guidelines state that Article 31 covers asylum-seekers, even without refugee status. Second, the 1999 guidelines state that “coming directly” includes cases where asylum-seekers traveled through other countries. The “good cause” rule requires contextual interpretation, and there’s no strict time limit for contacting authorities. Combined, these interpretations of Article 31 should significantly limit criminal convictions against asylum-seekers for irregular entry. Regardless, EU legislation and case law affirm asylum-seekers’ right to remain in the territory, placing them outside the Returns Directive’s scope since they aren’t considered irregular. Subjecting them to criminal prosecution for irregular entry would directly contradict this.

Furthermore, “soft law” applies not only to detention grounds but also to alternatives to detention, judicial review, and detention conditions. Regarding the latter, it addresses practicing religion while detained and broader contact with the outside world. Asylum-seekers should have access to a complaints mechanism for detention conditions. More details are available on detaining vulnerable individuals.

Regarding this point, it’s important to address the concerning derogations within the Directive. These allow Member States to waive the requirements for separate accommodations for detained families and separating detained women from unrelated men in “duly justified” cases at the border. Given the Charter rights to privacy, children’s rights, and the EU’s imminent signing of the Council of Europe Convention on violence against women, these derogations are likely invalid or only applicable in extreme cases (force majeure).

Interpretation of the Returns Directive

The Returns Directive doesn’t explicitly address the lapse of return decisions. The JN judgment marks the CJEU’s first ruling on this issue. While the Court only addressed return decisions lapsing due to asylum applications, one could argue that lapsing in other circumstances also conflicts with the Returns Directive. Member States can set higher standards than the Returns Directive, but only if compatible. The Zaizoune judgment demonstrated that such higher standards cannot waive the obligation to return individuals. The JN ruling implies that return decisions cannot lapse solely based on an asylum application.

The role of law in the development of the EU’s asylum regime

The JN ruling comes as the EU implements measures to reduce arrivals and stays, notably the controversial agreement with Turkey. Overall, the judgment signals that the CJEU will assert its legal authority, ensuring that measures addressing the refugee and migration crisis, particularly those concerning asylum-seekers, comply with human rights. Conversely, the Court strengthens the obligation to expel individuals without established reasons to stay.

More broadly, the EU’s refugee policies face a crisis. Instead of surrendering the issue to populism at EU or national levels, the EU should consult respected international experts for swift recommendations on addressing this crisis within a broader international context. Individuals like Mary Robinson, David Miliband, Madeleine Albright, and Carl Bildt are suitable candidates. Continuing on the current path is unsustainable: the EU needs a fair, humane, realistic, and coherent asylum policy, which it currently lacks.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: UNHCR, B. Szandelszky

Annex

Council of Europe Committee of Ministers Recommendation

• Point 1 – implicitly adopts the definition of “detention” from ECHR case law, offering more precision than the Directive.
• Point 3 – a general provision clarifies that “the aim [of detention] is not to penalise asylum-seekers.” The grounds for detention, specifically determining nationality or identity, are explained in greater detail than in the Directive. This applies “in particular when asylum seekers have destroyed their travel or identity documents or used fraudulent documents to mislead the host state’s authorities.” The ground of detention for determining elements of the asylum claim is less detailed than the Directive, lacking the phrase “in particular where there is a risk of absconding of the applicant.”
• No parallel exists for two grounds for detention under the Directive: under the Dublin process (where there’s a “significant risk of absconding”); and for asylum applications solely to forestall expulsion, given a prior opportunity to seek asylum.
• Point 4 – mandates a “careful” examination of detention grounds in individual cases, ensuring “non-arbitrary” detention.
• Point 5 – addresses grounds for judicial review, absent in the Directive. If the law doesn’t specify a maximum detention duration, the duration should be reviewed by the court (see the Mahdi judgment on the Returns Directive for comparison).
• Point 6 – states that “alternative and non-custodial measures…should be considered before resorting to measures of detention,” which the Directive doesn’t explicitly mention.
• Point 7 - Detention should not hinder asylum-seekers from submitting and pursuing their applications.
• Point 8 - Prioritize processing asylum applications from detained individuals, especially when detention results from immigration law.

Conditions of detention

• Point 15 – Detained asylum-seekers should be allowed to practice their religion and follow dietary restrictions based on their beliefs.
• Point 18 – Asylum-seekers should be allowed contact and visits (when feasible) with family, friends, social and religious counselors, NGOs working on human rights or refugee/asylum-seeker protection, and communication with the outside world. Note that this is broader than Article 10(4) of the Directive.
• Point 19 – Guarantee access to a complaints mechanism concerning detention conditions, an unaddressed issue in the Directive.
• Point 22 – Detained minors must not be held in prison-like environments. If alternative placements are impossible, special arrangements are necessary.

UNHCR guidelines

• Guideline 2 - Interprets Article 31 of the Geneva Convention, referenced in the Directive’s preamble. Refers to UNHCR Executive Committee conclusions for further clarification on when detention is “necessary” under this Article.
  • Article 31 also applies to asylum-seekers, not just recognized refugees; the 1999 version of the conclusions (point 4) states that “coming directly” includes transiting through other states before reaching the current state. There’s no strict timeframe for “without delay,” and “good cause” requires considering all circumstances.
• Guideline 3 – prioritizes exploring alternatives to detention, similar to the CoE recommendation.
• Grounds for detention include: (i) preventing absconding (partially aligning with the Dublin III Regulation); (ii) manifestly unfounded or abusive claims (not in the Directive); (iii) verifying identity or security, without mentioning nationality (not as comprehensive as the CJEU suggests); (iv) claim elements, explained in detail “within the context of a preliminary interview” (with further clarification); (v) public health (not in the Directive); (vi) national security; or (vii) a “last-minute” application to obstruct expulsion (not in the Directive).
  • Article 8(3)(d) of the Directive is not reflected here; “procedure to enter the territory” is not applicable.
  • General rule – detention cannot be used as a deterrent or to discourage claims, nor can it be punitive, disciplinary, or for violating rules at reception centers/camps.
• Guideline 4.3 – provides more detailed rules regarding alternatives to detention than Article 8(4) of the Directive.
• Guideline 5 – prohibits discriminatory detention practices.
• Guideline 6 – mandates time limits on detention.
• Guideline 7(iv) – grants the right of the asylum-seeker or their lawyer to attend hearings concerning detention reviews; 7(v) – places the burden of proof for detention on the authorities; 7(vi) – ensures detention doesn’t hinder the pursuit of an asylum application (similar to the CoE recommendation).
• Guideline 8 – mirrors the CoE Recommendation: religious diet, broader access to the outside world, more details on basic necessities (i.e., “dignity”) than the Directive, prohibition of prison uniforms and shackling, mentions a complaints procedure (like the CoE Recommendation) but with more detail.
• Guideline 9 – provides more detail on vulnerable individuals than Article 11(1) of the Directive.