Steve Peers
One of the most controversial
aspects of immigration and asylum law is the detention of migrants: people who
have broken no criminal law (other than, possibly a criminal law about
migration control) but who are detained during their asylum application, or
pending their removal from the country. The EU has had rules on detention of
irregular migrants for some time, in the Returns Directive (on the
CJEU’s interpretation of those rules, see my journal article here). But it has only recently had rules on the
detention of asylum-seekers, in the second-phase Directive on the
reception conditions for asylum-seekers. (The UK and Ireland have opted out of both Directives).
Recently, in the JN judgment, the CJEU
ruled for the first time on the interpretation of these new rules. In fact,
this was the Court’s very first judgment on any aspect of the second-phase
legislation, although it soon gave another judgment (on the rights of people
with subsidiary protection, discussed here), and other cases are
pending. The Court’s ruling addresses a number of key 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 security or
public order’, and its ruling implicitly somewhat constrains the possibilities
of detaining asylum-seekers on other grounds too. But in parallel to that, the
judgment strengthens the rules in the
Returns Directive on the detention and expulsion of irregular migrants. And the
Court’s ruling is surprisingly open to the application of human rights ‘soft
law’ as a means of interpreting EU law. Overall, while not mentioning the
current ‘refugee crisis’, the judgment is an implied rebuff to those who would
like to resort to extensive detention of asylum-seekers as a means to address
that crisis.
Background
The first phase reception
conditions Directive (adopted in 2003, applicable from 2005) said little
about detention of asylum-seekers. While the subsequent Returns Directive did
regulate detention of irregular migrants, the CJEU made clear in Kadzoev and Arslan that those rules did not apply to asylum-seekers,
because EU asylum legislation gives asylum-seekers the right to stay on the
territory until a decision is made at first instance on their application,
whereas the Returns Directive says that irregular migrants should be booted out
as soon as possible. In Arslan, the
Court clarified the relationship between the two sets of rules: an irregular
migrant detained under the Returns Directive could not simply escape from
detention by applying for asylum. Essentially the JN judgment returns to the same issue, and asks the Court to
reconsider its position in light of the more detailed rules on detaining
asylum-seekers which now apply.
So what are those rules? In the
second-phase reception conditions Directive, the previous ban on detaining
people solely because they have applied for asylum is retained. The Directive
then provides generally for detention of asylum-seekers if ‘necessary’ after
‘an individual assessment of each case…if other less coercive alternative
measures cannot be applied effectively’. Detention is permitted ‘only’ on six
grounds: (a) ‘in order to determine or verify [an asylum-seeker’s] identity or
nationality’; (b) to ‘determine the elements on which’ the application is based
‘which could not be obtained in the absence of detention, in particular where
there is a risk of absconding’; (c) in order to decide on entry onto the
territory; (d) when the asylum-seeker is detained pursuant to a planned expulsion
under the Returns Directive, and there are objective grounds to show that he or
she applied for asylum only to ‘delay or frustrate’ expulsion, despite having
had an opportunity to access the asylum procedure; (e) ‘when protection of
national security or public order so requires’; or (f) in accordance with the Dublin III Regulation on allocation of asylum-seekers between Member States, which
provides for detention if there is a ‘significant risk of absconding’ before a
Dublin transfer is carried out.
The grounds for detention must be
‘laid down in national law’, which must also lay down rules on alternatives to
detention. There are detailed rules on procedural guarantees as regards
detention, and on the conditions of detention. Those procedural guarantees and
detention condition rules also apply to Dublin cases, and the Dublin Regulation
moreover sets out precise rules on the length of detention. The CJEU has been
asked to interpret the ground for detention in the Dublin III Regulation, in
the pending Al Chodor case.
The judgment
Mr JN had made three prior
applications for asylum. They were all unsuccessful, but nevertheless he was
not removed from Dutch territory. Over a period of 20 years, he accrued more
than twenty convictions for criminal offences. The case did not concern detention for those criminal
convictions, as such detention falls outside the scope of the Directive
(unless, arguably, the criminal conviction is related to immigration offences:
more on that point below). Rather it concerned detention on grounds of ‘public
order and national security’, which the Dutch government imposed in light of his criminal offences – but
not as a penalty for them.
Obviously such detention is
compatible in principle with the Directive, which expressly provides for
detention on such grounds. So Mr. JN instead argued that the relevant provision
in the Directive itself was invalid. It should be noted that another pending case asks the CJEU whether two other grounds for detention in the Directive
are invalid: verification of identity or nationality, and determining the
elements on which the application is based.
The Court began its analysis by
reiterating its prior case law that the European Convention on Human Rights
(ECHR), which includes rules on detention, does not bind the EU as such. Instead,
it assessed the validity of the clause in the Directive in light of the EU
Charter of Fundamental Rights – although this did entail some assessment of the
validity of that clause in light of the ECHR as referred to in the Charter, as discussed below.
According to the Court, detention
undoubtedly affects the liberty of the individual, as guaranteed by Article 6
of the Charter. So the question is whether this particular ground for detention
was justified, in light of the general test for limiting Charter rights set out
in Article 52(1) of the Charter. This test requires that limitations on Charter
rights must: (a) be prescribed by law; (b) not infringe the essence of the
right; (c) be aimed at protecting an objective of general interest, or the
rights and freedoms of others; and (d) be proportionate – meaning that they are
appropriate and necessary to achieve their objective.
Applying these tests, the Court
first found that the possibility of detention on grounds of public policy or
national security was prescribed by law, since it was set out in the Directive.
It did not infringe the essence of the right to liberty, since it was based on
individual conduct and applied in ‘exceptional circumstances’, circumscribed by
the various general limits and guarantees relating to detention set out in the
Directive. Detention on grounds of public order and national security meets a
public interest, and moreover protects the right to ‘security’ of others.
The Court’s most detailed reasoning
therefore concerned proportionality. Detention on public order or national
security grounds was inherently ‘appropriate’ to the objective of ensuring
public protection. It was ‘necessary’ for a number of reasons, which the Court
elaborated in some detail. All restrictions on liberty have to be ‘strictly
necessary’ and this particular ground to detain was ‘strictly circumscribed’ by
the overall legal framework: detention on such grounds had to be ‘require[d]’;
detention must be provided for in national law; the general limits and
safeguards on detention in the Directive apply; the exception is limited by
international human rights ‘soft law’; and the concepts of ‘public policy’ and
‘national security’ had to be narrowly interpreted.
The Court explored the latter two
points further. As regards international human rights ‘soft law’, it noted that
in the Commission’s original proposal for the Directive, it referred to a
Council of Europe Recommendation on detention of asylum-seekers, as well as UNHCR guidelines
on detention. It then applied some of the text of the latter guidelines: in
particular detention of asylum-seekers must occur ‘only exceptionally’ in an
‘individual case’ as a ‘last resort’, where ‘necessary, reasonable and
proportionate to a legitimate purpose’.
As for the detention grounds of
‘public policy’ and ‘national security’, the Court applied last year’s
judgments in T and Zh and O (discussed here and here),
in which it had ruled that ‘public policy’ exceptions in other EU immigration
and asylum legislation had to be narrowly interpreted, consistently with the
narrow definition of that exception in EU free movement law. In JN it said the same for the national
security exception as regards detaining asylum-seekers, and furthermore as
regards the grounds for entry bans longer than five years, as set out in the
Returns Directive. So the exceptions apply only where there is a genuine
criminal or security threat, not where there 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 and pending expulsion order, which was attached to a ten-year entry
ban. Since entry bans for longer than five years can only be issued on grounds
of a ‘serious threat to public policy…public security or national security’ it
followed that detention could be ordered in the same circumstances – as long as
proportionality was ‘strictly observed’ and those reasons are still valid.
The Court also made clear that the
pending expulsion order could not lapse during consideration of JN’s asylum
application. The national case law which provided for it to lapse had to be
disapplied by the national court, in order to ensure the effectiveness of the
Returns Directive (ie the expulsion of irregular migrants). So Mr JN was a sort
of ‘Schrodinger’s migrant’: allowed to stay on the territory while his asylum
application was considered (and so subject to the detention rules in the
reception conditions Directive); but also simultaneously subject to an
expulsion order under the Returns Directive, which was only temporarily
suspended – and which continued to justify (in part) his detention under the
formally distinct set of asylum rules.
Finally, the Court concluded by
looking at the position under the ECHR, in the context of the Charter. The
former was relevant to the latter because Article 52(3) of the Charter says
that the ‘meaning and scope’ of Charter rights which ‘correspond’ to ECHR
rights is the same as those ECHR rights. However, the Court easily dismissed the ECHR
argument by pointing out that in the recent judgment of the European Court of
Human Rights (ECtHR) in Nabil v Hungary, an asylum seeker could still be detained pursuant to Article
5(1)(f) of the Convention (which allows detention ‘where action is being taken
with a view to deportation’) because rejection of an asylum application would
entail enforcement of an expulsion order. But the Court did refer to the
safeguards in other ECtHR case law: there can be ‘no element of bad faith or
deception by the authorities’, and detention must be proportionate.
Comments
As the CJEU’s first proper
judgment on detention of asylum-seekers, the JN ruling may become seminal. That’s not because of the facts of
this particular case: with three failed asylum applications and over twenty
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 in its
judgment has potentially wider impact.
I will analyse that possible
impact from five angles: (a) the ‘public policy and national security’ ground of
detention; (b) the application of other grounds for detention; (c) the Court’s use
of ‘soft’ human rights law; (d) the interpretation of
the Returns Directive; and (e) the role of law in the development of the EU’s
asylum regime more generally.
The ‘public policy and national security’ ground of detention
The Court made clear that the
public policy and national security grounds for detention must be narrowly
interpreted, and interpreted consistently with EU free movement law. Mr JN’s
detention was justified because of his prior criminal offences in conjunction
with the underlying expulsion order. But are these tests cumulative or
alternative? And are they exhaustive?
The Court does not address these
questions. However, the requirement to interpret these grounds consistently
with EU free movement law suggests that the two tests are exhaustive. Arguably
criminal offences alone could justify detention, in light of the nature of this
ground for detention. But the principle of proportionality must mean that
detention would be harder to justify in the absence of an expulsion decision,
and that the seriousness and number of the offences are also highly relevant.
(Remember that detention under the Directive is distinct from detention ordered
as a result of a criminal conviction,
or pre-trial detention linked to the criminal proceedings).
Conversely, it seems unlikely
that an expulsion decision alone could justify detention on this ground. If
that were permitted, it would be too easy for Member States to justify the
detention of almost all asylum-seekers, by issuing irregular migrants with
expulsion orders as soon as they are apprehended, before they can 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 subject to expulsion orders: the ‘last-minute
application’ clause. If the drafters of the Directive had intended a broader
possibility to detain asylum-seekers merely because they were subject to
expulsion orders, they would have drafted that clause differently.
Other grounds for detention
While most of the JN judgment focusses on the particular
‘public policy and national security’ ground for detention of asylum-seekers,
some of the Court’s reasoning casts light by analogy on the validity and
interpretation of the other five detention grounds.
First of all, each of the other
five grounds for detention of asylum-seekers restricts their liberty, so must
be also justified under Article 52(1) of the Charter. Applying the Court’s
analysis in the JN judgment by
analogy, each of those other five grounds is ‘prescribed by law’, at least
according to the CJEU’s approach to that concept. However, the other grounds
are not so closely linked to individual conduct of the person concerned,
although arguably the ‘last-minute application’ and Dublin III ‘serious risk of
absconding’ ground have a closer link than the others (the Dublin III
Regulation refers to ‘reasons in an individual case’ to suggest 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 subject to the
general limits and guarantees relating to detention set out in the Directive.
The public interest arguments for
the other grounds of detention are less obvious, although the Court could
probably find them: the efficiency of the asylum system, and (as regards the
entry control and ‘last-minute application’ grounds) immigration control (see
the Schwarz judgment by
analogy). But the restrictions on liberty are not so obviously appropriate as
is the case for public policy and national security (except as regards the
‘last-minute application’ clause, provided that there was an effective opportunity to apply for
asylum).
As for necessity, the Court
applied the ‘strictly necessary’ rule to all deprivations of liberty. Furthermore,
the other grounds for detention are also subject to the general limits and
safeguards set in the Directive, and the rule that detention must be provided
for in national law. However, not all of the specific features which the Court
discussed in JN apply to the other
grounds for detention: there is no obligation that detention on the other
grounds be ‘required’, and the interpretation of those other grounds under EU
law and international human rights soft law will necessarily be different. That
brings us neatly to the Court’s innovative use of that soft law.
The Court’s use of ‘soft’ human rights law
First of all, the Court’s use of
international human rights ‘soft law’ is remarkable in itself. It’s only taken
account of such rules once before in the immigration and 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 in JN, the explanatory
memorandum to the original proposal
is enough to trigger incorporation of the soft law into the Court’s
interpretation of the Directive.
It’s not clear if this may have
broader implications beyond the reception conditions Directive. I’ve checked
the original proposals for the other second-phase asylum laws, and none of them
refer to international soft law as far as I can see. (But note that the
preambles to the legislation do refer to the Geneva Convention on refugee
status, as well as the UN Convention on the Rights of the Child).
However, it does have a number of
implications for the interpretation of the reception conditions Directive. I
have read through both ‘soft law’ measures invoked by the Court, and noted
some key points where they could be useful in interpreting the Directive. For the
sake of readability, I have put some of the detail in an Annex to this blog post.
But here are the highlights.
The soft law gives more precise
explanations for detention on grounds of determining nationality or identity,
or to determine elements of the claim. A crucial point here is a detailed
interpretation of Article 31 of the Geneva Convention, which states that
refugees ‘coming directly’ from persecution cannot be penalised for irregular
entry if they breach immigration law for ‘good cause’ and contact the host
State’s authorities ‘without delay’. This is a big issue in practice.
Two years ago, in its
judgment in Qurbani (discussed here),
the CJEU said it would not interpret Article 31 of the Convention, unless EU
legislation referred to it. Well, the preamble to the second-phase reception
conditions Directive does refer to
it, in the context of detention (so does the Dublin III Regulation, and EU
anti-smuggling law). Since criminal penalties for irregular entry are affected
by the Returns Directive (according to the CJEU’s case law), it must follow
that they are also affected by EU asylum law, a fortiori because the EU legislators expressly refer to Article 31
of the Convention.
What does this mean on the
ground? While the JN judgment did not concern Article 31, the CJEU's willingness to apply the UNHCR guidelines on detention means that those guidelines could be relevant to its interpretation. First of all, those guidelines say that asylum-seekers are covered
by Article 31, even if their refugee status has not 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’ rule must be interpreted in
context, and there is no strict time limit for contacting the authorities. Between them, these interpretations of
Article 31 should limit asylum-seekers’ criminal convictions for irregular
entry considerably.
Furthermore, the soft law is relevant
not only to the grounds for detention, but also alternatives to detention,
judicial review of and the conditions for detention. On that latter point, it
mentions the practice of religion in detention, as well as a broader measure of
contact with the outside world. Asylum-seekers should have a complaints
procedure concerning detention conditions. There are more details on detention
of vulnerable persons.
On that point, I can never pass
on an opportunity to comment on the quite obnoxious derogations permitted in
the Directive, allowing Member States to waive the requirements for separate
accommodation for detained families and detaining women separately from
unrelated men, in ‘duly justified’ cases at the border. In light of the Charter
rights to privacy, the rights of the child and the EU’s imminent signature of
the Council of Europe Convention on violence against women (on which, see here),
these derogations are surely either invalid or can only apply in cases of force majeure.
Interpretation of the Returns Directive
The Returns Directive says
nothing explicitly on the lapse of return decisions. This judgment is the first
time the CJEU has ruled on the issue. While the Court only addresses the
specific point of return decisions lapsing due to an asylum application, it
might be argued by analogy that the lapse of return decisions in other
circumstances is also incompatible with the Returns Directive. Although Member
States are allowed to set higher standards than the Returns Directive, that
only applies if those standards are still ‘compatible’ with the Directive. As
we saw in the Zaizoune judgment
(discussed here), such higher standards cannot amount to a waiver of the
obligation to return people. It’s implicit in the JN ruling that equally it’s not compatible with the Directive for
return decisions to lapse as soon as an asylum application is made.
The role of law in the development of the EU’s asylum regime
The JN ruling came as the EU took further measures to reduce the
numbers coming to or staying on the territory – most notably by reaching a
controversial arrangement with Turkey (on which, see here). Overall, the
judgment sends a clear signal that the CJEU is going to assert its legal
authority to ensure that measures taken to deal with the refugee and migration
crisis are compatible with human rights, in particular as regards asylum-seekers
– although conversely the Court is keen to strengthen the obligation to expel
those who have not established any need to stay.
More broadly, the EU’s refugee
policies are obviously in a state of deep crisis. Rather than leave the issue
entirely to populists at the EU or national level, it would be better for the
EU ask a panel of respected international experts to recommend (quickly) how
the EU, in the wider international context, should deal with the crisis. I would
nominate (say) Mary Robinson, David Miliband, Madeline Albright and Carl Bildt
for this task. In any event, we cannot go on as we are: the EU needs an asylum
policy that is simultaneously fair, humane, realistic and coherent; but it is
falling far short 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 case law, and is more precise than in
the Directive
Point 3 – a general provision
says ‘the aim [of detention] is not to penalise asylum-seekers’. The ground of
detention to determine nationality or identity is explained in more detail than
under the Directive. It applies ‘in particular when asylum seekers have destroyed
their travel or identity documents or used fraudulent documents in order to
mislead the authorities of the host state’. The ground of detention to
determine elements of the asylum claim is less
detailed than under the Directive, which contains the following additional
words: ‘in particular where there is a risk of absconding of the applicant’.
There is no parallel to two of
the grounds for detention under the Directive: under the Dublin process (ie
where there is a ‘significant risk of absconding’ during that process); and
where there is an asylum application purely to forestall an expulsion decision,
if the asylum-seeker had previously had an opportunity to apply for asylum.
Point 4 – says there must be a
‘careful’ examination of the grounds for detention in individual cases, and
detention shall be ‘non-arbitrary’.
Point 5 – discusses grounds for
judicial review, which are not expressly mentioned in the Directive. If a maximum detention
duration has not been provided for by law, the duration of the detention should
form part of the review by the above-mentioned court (see the Mahdi judgment on the
Returns Directive by analogy).
Point 6 – ‘Alternative and
non-custodial measures…should be considered before
resorting to measures of detention’. The Directive does not state this
expressly.
Point 7 - Measures
of detention should not constitute an obstacle to asylum seekers being able to
submit and pursue their application for asylum.
Point 8 - Asylum applications from persons in detention
should be prioritized for the purposes of processing. This is especially the
case where a person is held in detention because of reasons resulting from the
law pertaining to foreigners.
Conditions of detention
Point 15 - Detained asylum seekers should
be allowed to practice their religion and to observe any special diet in
accordance with their religion.
18. Asylum seekers should be allowed to
contact and, wherever possible, receive visits from relatives, friends, social
and religious counsellors, non-governmental organisations active in the field
of human rights or in the protection of refugees or asylum seekers, and to
establish communication with the outside world. Note that this is wider than
Article 10(4) of the Directive.
19. Asylum seekers should be guaranteed
access to a complaints mechanism concerning the conditions of detention. This
issue is not mentioned in the Directive.
22. If minors are detained, they must not be
held under prison-like conditions…If [placing outside detention] proves
impossible, special arrangements must be made.
UNHCR guidelines
Guideline 2 - Interprets
Article 31 of Geneva Convention – also referred to in preamble to the
Directive. Refers also to UNHCR Executive Committee
conclusions for more on when detention is ‘necessary’ under Article 31 of the Convention
Article 31 applies also to asylum-seekers,
not just recognised refugees; 1999 version of conclusions: (point 4) ‘coming directly’ clause also
covers cases where the asylum seeker transited through other States on way to
State where they are now present. No strict time limit to the phrase ‘without
delay’. ‘Good cause’ – must look at all the circumstances
Guideline
3 – must consider alternatives to detention first – same as in CoE
recommendation.
Grounds
for detention (i) to prevent absconding (matches Dublin III Regulation to some extent); (ii) manifestly unfounded or abusive claims (no match with Directive); (iii) to verify identity or security; no reference to nationality (so not as
complete a correspondence as CJEU suggests); (iv) elements of the claim –
explained in detail ‘within the context of a preliminary interview' (with further
clarification); (v) public health (no match in the Directive); (vi) national security; or (vii) a 'last minute' application to frustrate expulsion (no match in the Directive)
Point (d) of Article 8(3) of the Directive doesn’t appear here;
‘procedure to enter the territory’ does not apply.
General
rule – cannot use detention as a deterrent, or to dissuade continuing with
claims; not punitive or disciplinary, or for breach of rules at reception
centres or camps.
Guideline
4.3 – more detailed rules on alternatives to detention than in Article 8(4) of
the Directive.
Guideline 5 - detention cannot be discriminatory
Guideline 6 - there must be time limits on detention
Guideline 7(iv) – right of asylum-seeker or lawyer to attend hearing re review of
detention; 7(v) – authorities have burden of proof re detention; 7(vi) not an
obstacle to pursue the asylum application (as in CoE recommendation).
Guideline 8 – like CoE Recommendation: religious diet, wider access to outside world;
more details on basic necessities than in Directive (ie ‘dignity’); no prison uniforms or shackling; also refers
to complaints procedure (like CoE Recommendation) but goes into further detail
than that Recommendation
Guideline 9 – more details on vulnerable persons than in Art 11(1) of the Directive
