Dr. Vasiliki Apatzidou, Associate Tutor at the University of London
Photo credit: Nicolas Economou, via Wikimedia
Commons
Introduction
The Court’s judgment in the Danané case largely
confirms the core argument made by Advocate General Emiliou in his Opinion: that the border procedure in EU asylum law (which provides for
a fast-track assessment of asylum claims, with the implied legal fiction that
the applicant has not entered the territory) is not exclusively attached to the
physical border. In my earlier analysis of the Opinion, I argued that the Advocate General had moved
towards a functional rather than pragmatic understanding of the ‘border’.
According to him, procedures traditionally associated with entry control may
not only take place in border facilities, but also in inland facilities if they
are designated as such by national law. The Court of Justice has now broadly
endorsed that logic by holding that EU law does not prohibit Member States from
detaining asylum applicants during asylum border procedures in centres that are
not geographically located at the border, and that such detention may continue in the same
place after the expiry of the four-week period envisaged for the border
procedure provided that a new legal basis for detention exists. In that sense, the original thesis still stands. However, the
judgment also tries to contain the consequences of this argument through a focus
on safeguards.
Summary of the Judgment
The joined cases arose from applications for international
protection lodged at the Belgian border by third-country nationals who were
refused entry and detained in the Caricole Transit Centre, a facility located
inside Belgian territory but treated under national law as a place ‘at the
border’ for the purposes of the border procedure. In Danané, the Court confirms that Article 43 of the recast asylum procedures
Directive (APD), which sets out the current version of the border procedure,
does not require border procedures to be implemented only in facilities
physically located at the external border, since a border procedure may also be
conducted in an inland detention centre that national law treats as a place ‘at
the border’.
At the same time, once the four-week period in Article 43(2) recast
APD expires, the case no longer remains within the border procedure and must
continue under the regular procedure, even though the applicant may still be
kept in the same facility if continued detention is separately justified under the
detention grounds laid down in Directive
2013/33 (the reception conditions Directive, or RCD). The Court therefore
accepts a dual classification of the same place of detention. However, this may
happen only on condition that the applicant is informed of the change in legal
status – it should be clear that he or she is now allowed to enter the
territory – and that continued detention complies with the requirements of
necessity, proportionality, individual assessment, and judicial review. It also
makes clear that investigative steps already carried out during the border phase
may still be relied on in the subsequent procedure, and that the examination of
the application may be prioritized. Significantly, detention after the
four-week limit cannot become automatic or systematic for all those who are channelled
from the border to the regular procedure.
One Legal Fiction After Another
What makes Danané case
especially important is that the Court relocates the decisive legal limit on
the use of border procedures from geography to proper legal justification and
safeguards. The judgment accepts that the same detention facility may first
function as a place ‘at the border’ for the purposes of Article 43 recast APD
and then, once the four-week period has expired, as a place ‘in the territory’,
without any necessary change in the applicant’s physical surroundings. Instead,
the Court tries to preserve a merely legal distinction between the two phases.
Once the four-week period in Article 43 recast APD expires, the application no
longer falls within the border procedure and his or her application will be
examined under the other provisions of Directive 2013/32, while any continued
detention may take place in the same facility, but must comply with the
safeguards and requirements envisaged in Directive 2013/33. The Court also
makes clear that detention cannot simply continue under the old
border-procedure logic, that the applicant must be informed of the change in
his or her legal situation, and that, where appropriate, the person must
receive the document certifying their status as an asylum-seeker referred to in
Article 6 of Directive 2013/33 or equivalent evidence, although in practice detained applicants often do
not receive prompt documentation giving practical effect to this safeguard.
Yet the real problem is that this legal transition may leave the
applicant’s position almost untouched in practice. If the same person remains
in the same closed facility and under the same deprivation of liberty, the transition
from border procedure to regular procedure risks becoming a legal fiction itself.
That is where the judgment deserves a more critical reading. Formal entry into
the territory may mean very little if it is not accompanied by adequate
safeguards. The reception conditions Directive links applicant status to
documentation, reception conditions, education for minors, and access to the
labour market under the conditions laid down in the directive, yet the judgment
says relatively little about how immediate and effective those rights must be
in practice where the person remains detained. If an applicant still lacks
prompt documentation, cannot effectively enjoy reception rights, and remains
unable to exercise rights that normally follow from being an asylum seeker who
has entered the territory and whose application is processed inside the
territory under the regular procedure, then the shift from border to regular procedure
serves primarily the asylum authorities, which in practice gain more time to
decide while preserving continuity of control.
For that reason, continued detention after the expiry of the
time limit foreseen in Article 43 recast APD must be treated with particular
rigour. In this regard, it is very important that the Court itself turns from
geography to safeguards, stressing that such detention must satisfy the
ordinary standards of the recast RCD: necessity, proportionality, individual
assessment, and one of the exhaustively listed grounds in Article 8 of the RCD,
together with judicial review under its Article 9. If those requirements are
not applied strictly, the transition endorsed in Danané risks turning the strict four-week time limit (extended
to 12 weeks according to the Asylum
Procedures Regulation, part of
the EU Asylum Pact, which applies to asylum applications starting on 12 June) of
the border procedure into a merely formal threshold.
This case matters beyond the Belgian transit centre and beyond
the immediate interpretation of Article 43 recast APD. As my earlier analysis
already suggested, the judgment fits a broader trajectory in EU asylum law in
which the border is becoming less a fixed territorial line and more a shifting
legal frontier that can be reproduced inside the territory. Read alongside the Pact texts, especially the Asylum
Procedures Regulation, which more openly accommodates designated inland
locations and expands the operational importance of border procedures, Danané looks less like an isolated ruling and more
like a bridge toward a more internalised model of border procedures, in
which procedures traditionally confined to the border and justified as
exceptional may increasingly be reproduced inside
the territory. For that very
reason, safeguards become more important than ever, as the more flexible the geography of the border, the
stricter the requirements governing detention, procedural guarantees, and the
legal consequences of the expiry of time limits must be.
Conclusion
The deeper concern, then, is not merely that the Court has
de-geographised the border. It is that, once the border is treated primarily as
a legal status rather than a territorial threshold, ‘non-entry’ itself risks
becoming a legal fiction capable of sustaining restrictive forms of asylum
processing well inside national territory. The Court’s answer is that this is
acceptable so long as the relevant guarantees, both in the asylum procedure and
the detention safeguards, are preserved.
Whether that answer is convincing will depend entirely on
practice. If detention after four weeks is truly exceptional and tightly
reviewed, the distinction between border procedure and regular procedure may
still make sense. But if applicants remain in materially unchanged detention
while the determining authority simply acquires more time to decide, Danané will stand as a case of one legal
fiction after another. Especially under the Pact, where screening and border
procedures are further mainstreamed, the central question is whether safeguards
are strong enough to prevent exception from becoming the ordinary mode of
asylum governance.
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