The Court of Justice of the European Union (CJEU) has ruled that the Returns Directive, which allows for the detention of migrants awaiting return for up to 18 months, does not apply to asylum seekers while their applications are being processed. However, the Reception Conditions Directive and the Asylum Procedures Directive, which would apply in these circumstances, do not prohibit the detention of asylum seekers if it is assessed that the application was made solely to frustrate the return procedure and that it is objectively necessary to maintain detention to prevent the person from evading his or her return.

According to the Asylum Procedures Directive, Member States cannot detain a person for the sole reason that he/she is an asylum applicant. The grounds for detention of asylum seekers in the EU will be established in the new Reception Conditions Directive due for final adoption in June. One of the detention grounds in the recast Reception Conditions Directive relates specifically to the situation of third country nationals applying for asylum after having been detained for the purpose of removal and requires Member States to substantiate on the basis of objective criteria, that there are reasonable grounds to believe that he or she is making the application for international protection solely in order to delay or frustrate the enforcement of the return decision.   

The case concerned a Turkish migrant who was held in detention in the Czech Republic as an irregular migrant. He applied for asylum from detention and the Czech Supreme Court asked the CJEU whether the Returns Directive applied to his case, and whether he might be kept in detention if no other circumstances justified it.



This article originally appeared in the ECRE Weekly Bulletin of 31 May 2013
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