On 15 March 2017, the CJEU delivered its judgment in case C-528/15 Al Chodor, which related to detention under the Dublin III Regulation. The Court decided that Member States are required to establish objective criteria of a “risk of absconding” in a binding provision of general application (for example, in a regulation or legislation) and that, in the lack of such a provision, the detention of asylum seekers on this ground should be considered unlawful.

The Supreme Administrative Court of the Czech Republic requested a preliminary ruling from the CJEU on a case concerning three Iraqi nationals of Kurdish origin who fled persecution from the Islamic State. They crossed from Turkey to Greece and intended to continue their way to Germany. In Hungary, they were fingerprinted and sent to a refugee camp for two days before continuing their journey. In the Czech Republic, they were stopped by the police and detained pending their transfer to Hungary, following the procedure under the Dublin III Regulation. Under this Regulation, Member States can detain asylum seekers in order to ensure a transfer to a responsible Member State when there is a significant risk that the applicant will abscond. However, not all MS define in law the criteria to establish a “risk of absconding”.

The CJEU found that detention under Dublin III in the absence of objective criteria to determine a “risk of absconding” is unlawful. The Court noted that any measure on deprivation of liberty must be accessible, precise and foreseeable, as required by Article 6 of the EU Charter of Fundamental Rights interpreted in light of the case-law of the European Court of Human Rights.

There are substantial differences in the way Member States use the “significant risk of absconding” criterion to detain asylum seekers. In a 2015 Legal Briefing, ECRE raised its concerns over the broad implementation of this criterion throughout EU, which has direct impact on asylum seekers rights. Following the judgment, the UK Home Office issued a regulation laying down the criteria to be considered when identifying a significant risk of absconding.

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Photo: Michael Coghlan