Tommaso Poli, LL.M. candidate in Human Rights and Humanitarian Law
at the University of Essex, School of Law.
One of the most controversial
issues in immigration law is the detention of asylum-seekers. This issue was
not initially addressed by the European Common Asylum System (CEAS), but is now
addressed in some of the second-phase CEAS measures (the CEAS consists of the Asylum
Procedures Directive, the Reception
Conditions Directive, the Qualification
Directive, the Dublin
Regulation and the EURODAC
Regulation).
In particular, the second-phase
CEAS measures contain detailed rules on detaining asylum-seekers in two
cases: a) general rules in the Reception
Conditions Directive, which were the subject of a first ECJ ruling in 2016
(discussed here)
and a recent opinion
of an Advocate-General; and b) more specific rules in the Dublin III
Regulation, applying to asylum-seekers whose application is considered to be
the responsibility of another Member State under those rules. Recently, the ECJ
ruled for the first time on the interpretation of the latter provisions, in its
judgment in the Al Chodor case.
As we will see, the Court took a
strong view of the need for the rule of law to apply in detention cases.
Moreover, its ruling is potentially relevant not just to Dublin cases, but also
detention of asylum-seekers and irregular migrants in other contexts too.
The rules on detaining
asylum-seekers in the context of the Dublin process are set out in Article 28 of the Dublin III Regulation. First of
all, Article 28(1) states that asylum seekers can’t be detained purely because
they are subject to the Dublin process. Then Article 28(2) sets out the sole
ground for detention: when there is a ‘significant risk of absconding’. If that
is the case ‘Member States may detain the person concerned in order to secure
transfer procedures in accordance with’ the Dublin rules, ‘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’.
Next, Article 28(3) sets out
detailed rules on time limits for ‘Dublin detention’; these are the subject of
the pending Khir Amayry case. Finally, Article
28(4) states that the general rules on guarantees relating to procedural rights
and detention conditions set out in the Reception Conditions Directive apply to
asylum-seekers detained under the Dublin rules.
Al Chodor concerned the interpretation of the grounds for detention
under Article 28(2): what is a ‘serious risk of absconding’? The Dublin III Regulation offers some limited
clarity, defining ‘risk of absconding’ as ‘the existence of reasons in an
individual case, which are 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
The case relates to an Iraqi man
and his two minor children who were travelling from Hungary in the Czech
Republic, without any documentation to establish their identity, with the aim
of joining family members in Germany. After stopping the Al Chodors, the Czech
Foreigners Police Section (FPS) consulted the Eurodac database and found that
they had made an asylum application in Hungary. As a consequence, the Al Chodors
were subjected to the transfer procedure according to Article 18(1)(b) of the
Dublin III Regulation. In addition, the FPS took the view that there was a ‘serious
risk of absconding’, given that the Al Chodors had neither a residence permit
nor accommodation in the Czech Republic, while they were waiting for their
transfer to Hungary.
So, they placed the Al Chodors in
detention for 30 days pending their transfer pursuant to Paragraph 129(1) of
the national law on the residence of foreign nationals, read in conjunction
with Article 28(2) of the Dublin III Regulation. The Al Chodors brought an
action against the decision ordering their detention to the regional Court,
which annulled that decision, finding that Czech legislation does not lay down
objective criteria for the assessment of the risk of absconding within the
meaning of Article 2(n) of the Dublin III Regulation. That Court accordingly
ruled that the decision was unlawful. Following the annulment of the decision
of the FPS, the Al Chodors were released from custody.
The FPS brought an appeal on a
point of law before the Supreme Administrative Court against the decision of
the Regional Court. According to the FPS, the inapplicability of Article 28(2)
of the Dublin III Regulation cannot be justified by the mere absence in Czech
legislation of objective criteria defining the risk of absconding. That
provision subjects the assessment of the risk of absconding to three
conditions, namely an individual assessment taking account of the circumstances
of the case, the proportionality of the detention, and 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 by its settled case-law of objective
criteria on the basis of which the detention of persons pursuant to Paragraph
129 of the Law on the residence of foreign nationals may be carried out can
meet the requirement of a definition 'by law' within the meaning of Article
2(n) of the Dublin III Regulation, in so far as that case-law confirms a
consistent administrative practice of the FPS which is characterised by the
absence of arbitrary elements, and by predictability and an individual
assessment in each case. So the Court decided to refer to the European Court of
Justice for a preliminary ruling asking whether Article 2(n) and Article 28(2)
of the Dublin III Regulation, read in conjunction, must be interpreted as
requiring Member States to establish, in a national law, objective criteria
underlying the reasons for believing that an applicant for international
protection who is subject to a transfer procedure may abscond, and whether the
absence of those criteria in a national law leads to the inapplicability of
Article 28(2) of that regulation.
Judgment
The Court of Justice first of all
ruled that Article 2(n) of the Dublin III Regulation explicitly requires that
objective criteria defining the existence of a risk of absconding be defined by
the national law of each Member State (paragraph 27-28). Then, determining
whether the word ‘law’ must be understood as including settled case-law, the
Court reaffirmed that in interpreting a provision of EU law, it is necessary to
consider not only its wording but also the context in which it occurs and the
objectives pursued by the rules of which it forms part (judgment
of 26 May 2016, Envirotec Denmark, paragraph
27).
So with regard to the general
scheme of the rules of which Article 2(n) of Dublin III Regulation forms part,
the Court, referring to recital 9 of that regulation, states that the regulation
is intended to make necessary improvements, in the light of experience, not
only to the effectiveness of the Dublin system but also to the protection of
fundamental rights afforded to applicants under that system. This high level of
protection is also clear from Articles 28 and 2(n) of that regulation, read in
conjunction. As regards the objective pursued by Article 2(n) of the Dublin III
Regulation, read in conjunction with Article 28(2) thereof, the Court recalls
that, by authorizing the detention of an applicant in order to secure transfer
procedures pursuant to that regulation where there is a significant risk of
absconding, those provisions provide for a limitation on the exercise of the
fundamental right to liberty enshrined in Article 6 of the Charter.
In that regard, it is clear from
Article 52(1) of the Charter that any limitation on the exercise of that right
must be provided for by law and must respect the essence of that right and be
subject to the principle of proportionality. Furthermore, it is worth noting
that in this ruling the European Court of Justice explicitly aligns its
interpretation to the European Court of Human Rights (ECtHR), reaffirming that
any deprivation of liberty must be lawful not only in the sense that it must
have a legal basis in national law, but also that lawfulness concerns the
quality of the law and implies that a national law authorizing the deprivation
of liberty must be sufficiently accessible, precise and foreseeable in its
application in order to avoid risk of arbitrariness (judgment
of the European Court of Human Rights of 21 October 2013, Del Río Prada v Spain, paragraph 125).
The Court then concluded by
stating that taking account of the purpose of the provisions concerned, and in
the light of the high level of protection which follows from their context,
only a provision of general application could meet the requirement of clarity,
predictability, accessibility and, in particular, protection against
arbitrariness. It follows that Article 2(n) and Article 28(2) of the Dublin III
Regulation, read in conjunction, must be interpreted as requiring that the
objective criteria underlying the reasons for believing that an applicant may
abscond must be established in a binding provision of general application. In
the absence of such criteria, the detention was unlawful.
Comments
First of all, the Court’s ruling is
likely relevant to the interpretation of other EU 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 part of the ground for detention (as well as one of the grounds for refusing to allow the irregular migrant a period for voluntary departure); and it is defined
exactly the same way as in the Dublin III Regulation. As for asylum seekers who
are detained on grounds other than the Dublin process, a ‘risk of absconding’ is
an element of one of the grounds for detention under the Reception Conditions
Directive, but is not further defined. But a recent Advocate-General’s opinion
notes (at para 73) that this clause aims to prevent ‘arbitrary’ detention,
which was a key feature of the reasoning in the Al Chodor judgment. This surely points to a consistent interpretation
of the two asylum laws. It follows that arguably the Court’s judgment should be
relevant not just to Dublin cases but to any
immigration detention of non-EU citizens in any Member State bound by the
relevant EU legislation.
Secondly, this ruling has
reiterated the principle by which although regulations generally have immediate
effect in national legal systems without it being necessary for the national
authorities to adopt measures of application, some of those provisions may
necessitate, for their implementation, the adoption of measures of
applicability by the Member States (judgment
of 14 April 2011, Vlaamse
Dierenartsenvereniging and Janssens, paragraphs 47 and 48).
Most significantly, the Court has
reaffirmed the primacy of Human Rights law in EU asylum law implementation,
highlighting that the development of the EU asylum law itself depends on its
compliance with Human Rights law. In particular, the ECJ’s ruling in this case
first of all reflects the ECtHR’s interpretation of the ‘arbitrariness’ of
detention, which extends beyond the lack of conformity with national law.
Notably, it states that a deprivation of liberty that is lawful under domestic
law can still be arbitrary and thus contrary to the general principles, stated
explicitly or implied, in 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 reflects
UN human rights norms. The Human Rights Committee’s General
Comment No. 31 related to the nature of the general legal obligation
imposed on State parties to the UN Covenant on Civil and Political Rights,
which all EU Member States are State parties to, which reads 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). Furthermore, 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).
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 in this historical period,
since, as with any constitutional instrument, the more society as a whole is
going through difficult times (such as the perceived ‘migration crisis’ in
Europe), the more important it is to reaffirm its principles and values.
Likewise Article 52 of the EU
Charter states that in no case may restrictions be applied or invoked in a
manner that would impair the essence of a Charter right; in the context of
detention, a fortiori it can be also
affirmed that essential elements of guarantee for that right, as the
requirement of lawfulness and non-arbitrariness for the right of liberty,
cannot be disregarded in any circumstance. The Al Chodor ruling puts meat on the bones of that fundamental
principle.
Barnard & Peers: chapter 26
JHA4: chapter I:5
Photo: Amygdaleza detention centre in Greece, credit: www.metamute.org
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