03 July 2015

ECRE has published its first AIDA Legal Briefing, focusing on the legality of detaining asylum seekers for the purpose of transfer to the Member State responsible for examining their application under the Dublin III Regulation.

The briefing analyses the new Article 28 of the Dublin III Regulation which permits detention if certain conditions are met; where there is a ‘significant risk of absconding’, no alternative measures which are less coercive, and detention is necessary and proportionate to the aim of transferring the person. The briefing also sketches out the applicable safeguards and conditions of detention under the Dublin III Regulation.

The briefing examines the legality of detaining asylum seekers subject to Dublin procedures under the European Convention on Human Rights (ECHR) and its corresponding provision in the EU Charter of Fundamental Rights. Article 5(1)(f) ECHR allows states to detain non-nationals, either to prevent them from “effecting an unauthorised entry” in their territory or to deport them.

The assumption that asylum seekers are detainable as they are “effecting an unauthorised entry”, as suggested by the European Court of Human Rights in Saadi v United Kingdom, seems untenable under EU law, since the Asylum Procedures Directive provides asylum seekers with a right to remain on the territory of Member States pending a decision on their application. As the Court of Justice of the European Union has detailed in Cimade and GISTI, all rights attached to asylum seekers’ status remain applicable throughout the entire Dublin procedure, until a person has effectively reached the territory of the receiving country.

At the same time, the European Court of Human Rights has clarified that asylum seekers cannot be deported before their claim has been examined. In that sense, the Dublin Regulation creates a peculiar category of asylum seekers who may be removed from the territory of a Member State before their application is examined, falling outside the scope of Article 5(1)(f) ECHR. Under an appropriate reading of the ECHR, Dublin detentions should not be permissible.

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This article originally appeared in the ECRE Weekly Bulletin of 03 July 2015. You can subscribe to the Weekly Bulletin here.