Main Debate

Is detention of asylum seekers consistent with EU Member States’ international refugee and human rights obligations?

Main Points

The use of detention as a deterrent or punishment, in addition to containment

Different legal standards governing

  1. detention of asylum-seekers
  2. detention of people with no right to remain, pending removal and
  3. criminal detention, including for irregular entry

EU documents

Directive 2013/33/EU of 26 June 2013 of the European Parliament and of the Council laying down standards for the reception of applicants for international protection (recast), OJ L 180/96, 29 June 2013, Articles 7, 8 & 9.

Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, OJ L 348, 24 December 2008, Chapter IV, ‘Detention for the purposes of removal’.

UNHCR

UNHCR, ’UNHCR Comments on the European Commission's amended recast proposal for a Directive of the European Parliament and the Council laying down standards for the reception of asylum-seekers’, July 2012, (COM (2011) 320 final, 1 June 2011).

UNHCR, ’Submission by the Office of the United Nations High Commissioner for Refugees in the Case of Alaa Al-Tayyar Abdelhakim v. Hungary’, 30 March 2012, Application No. 13058/11,– concerning detention of asylum-seekers for the purposes of expulsion; prolonged detention; risk of refoulement.

UNHCR, ’Submission by the Office of the United Nations High Commissioner for Refugees in the Case of Said v. Hungary’, 30 March 2012, Application No. 13457/11, – concerning detention of asylum-seekers, including those transferred to Hungary under the Dublin II Regulation, for the purposes of expulsion; prolonged detention; risk of refoulement.

Cases

Alexandre Achughbabian v. Préfet du Val-de-Marne, C-329/11, Court of Justice of the European Union, 6 December 2012.

Said and Al-Tayyar, Applications 13457/11 and 13058/11, European Court of Human Rights, 23 October 2012.

Saïd Shamilovich Kadzoev v. Direktsia ‘Migratsia’ pri Ministerstvo na vatreshnite raboti, Case C-357/09, 30 November 2009.

Saadi v. United Kingdom, 13229/03, Council of Europe: European Court of Human Rights, 29 January 2008.

Readings

Core

D. Wilsher, Immigration Detention. Law, History, Politics (Cambridge University Press, 2011), ch 4.

Statewatch, ‘Analysis on the Returns Directive’, 9 June 2008.

STEPS Study for the European Parliament, ‘The Conditions in Centres for Third Country Nationals (detention camps, open centres as well as transit centres and transit zones) with a Particular Focus on Provisions and Facilities for Persons with Special Needs in the 25 EU Member States’ IP/C/LIBE/IC/2006-181, December 2007.

Extended

K. Hailbronner, ‘Detention of Asylum Seekers’, European Journal of Migration and Law, vol. 7, no. 9 (2007), pp. 159–172.

E. Mincheva, ‘Case Report on Kadzoev, 30 November 2009’, European Journal of Migration and Law, vol. 3 (2010), pp. 361–371.

C. Smyth, ‘Is the Right of the Child to Liberty Safeguarded in the Common European Asylum System?’, European Journal of Migration and Law, vol. 15, no. 2 (2013), p. 111-136. 

 VI.2.5.1 DetentionVI.2.5.1 Detention