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Detention of Asylum Seekers and Irregular Migrants and the Rule of Law

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Detention of Asylum Seekers and Irregular Migrants and the Rule of Law Statement of the European Law Institute: Detention of Asylum Seekers and Irregular Migrants and the Rule of Law The European Law Institute The European Law Institute (ELI) is an independent non-profit organisation established to initiate, conduct and facilitate research, make recommendations and provide practical guidance in the field of European legal development. Building on the wealth of diverse legal traditions, its mission is the quest for better law-making in Europe and the enhancement of European legal integration. By its endeavours, ELI seeks to contribute to the formation of a more vigorous European legal community, integrating the achievements of the various legal cultures, endorsing the value of comparative knowledge, and taking a genuinely pan-European perspective. As such, its work covers all branches of the law: substantive and procedural; private and public. ELI is committed to the principles of comprehensiveness and collaborative working, thus striving to bridge the oft-perceived gap between the different legal cultures, between public and private law, as well as between scholarship and practice. To further that commitment it seeks to involve a diverse range of personalities, reflecting the richness of the legal traditions, legal disciplines and vocational frameworks found throughout Europe. ELI is also open to the use of different methodological approaches and to canvassing insights and perspectives from as wide an audience as possible of those who share its vision. President: Diana Wallis Vice-President: Christiane Wendehorst Treasurer: Johan Gernandt Speaker of the Senate: Irmgard Griss European Law Institute Schottenring 16/175 1010 Vienna Austria Tel.: + 43 1 4277 22101 Mail: [email protected] Website: www.europeanlawinstitute.eu ISBN: 978-3-9503458-8-9 © European Law Institute 2017 ACKNOWLEDGEMENT Project Team Reporter BOŠTJAN ZALAR, JUDGE, SLOVENIA Members of the Project Team SAMUEL BOUTRUCHE ZAREVAC, JUDICIAL ENGAGEMENT COORDINATOR, BELGIUM MARC CLÉMENT, JUDGE, FRANCE MARK CLOUGH, QC, SENIOR COUNSEL, BELGIUM MARÍA-TERESA GIL-BAZO, SENIOR LECTURER IN LAW, UNITED KINGDOM SERGO MANANASHVILI, ADVISOR ON RETURN AND READMISSION, AUSTRIA PAMELA MCCORMICK, REGISTRY LAWYER, FRANCE ALA ŠABANOVIČ , PROJECT OFFICER, AUSTRIA SAŠA SEVER, JURIST, LUXEMBOURG ELI Advisory Committee Special Advisors FABRIZIO CAFAGGI, PROFESSOR OF LAW, ITALY MICHAEL FORDHAM, QC, BARRISTER, UNITED KINGDOM VALSAMIS MITSILEGAS, PROFESSOR OF LAW, UNITED KINGDOM ADRIANO SILVESTRI, HEAD OF SECTOR ASYLUM, MIGRATION AND BORDERS, AUSTRIA Further Members of the Advisory Committee DAVID CONLAN SMYTH, BARRISTER, IRELAND ALICE EDWARDS, PARTICIPATION IS IN HER PERSONAL CAPACITY, UNITED KINGDOM JOHAN GERNANDT, LAWYER, SWEDEN ROXANNE MANSON, SECRETARY GENERAL, BELGIUM ALLAN ROSAS, JUDGE, LUXEMBOURG Observers KILLIAN O´BRIAN, TRAINING OFFICER, MALTA The views set out in this Statement should not be taken as representing the views of those bodies, on whose behalf individual members of the working party and advisory group were also acting. TABLE OF CONTENTS ACKNOWLEDGEMENT .......................................................................................................................... 3 TABLE OF CONTENTS ............................................................................................................................ 4 Section 1. Introduction: Purpose and Methodology of the Project..................................................... 5 Section 2: Detention and the Rule of Law ......................................................................................... 10 Section 3. Interplay of EU Law, the ECHR and National Law in the Context of the Protection of Human Rights ..................................................................................................................................... 28 Overview of Standards ....................................................................................................................... 61 Section 4. Detention under the Dublin III Regulation and the ECHR: Basic Judicial Check-list 1....... 63 Explanatory Note to the Basic Judicial Check-List 1 ............................................................. 113 Section 5: Detention under the Return Directive and the ECHR: Basic Judicial Check-List 2 .......... 162 Explanatory Note to the Basic Judicial Check-List 2 ............................................................. 216 Section 6. Detention under the Recast Reception Directive and the ECHR: Basic Judicial Check-list 3 .......................................................................................................................................................... 259 Bibliography ..................................................................................................................................... 308 Index ................................................................................................................................................. 324 Section 1. Introduction: Purpose and Methodology of the Project Section 1. Introduction: Purpose and Methodology of the Project The Treaty on European Union establishes that the rule of law is one of the values on which the EU is founded and one of the principles which the EU is bound to promote in its relations with third countries. Specifically in the field of migration, the Commission adopted the European Agenda on Migration (COM (2015) 240 final) in May 2015, which sets several policy tools in the field of asylum, later complemented by its Communication (COM (2016) 197 final) of April 2016 presenting options for the reform of the Common European Asylum System. The sources of EU secondary law in this field (Recast Reception Conditions Directive 2013/33/EU, Return Directive 2008/115/EC and Dublin III Regulation) provide the rules on detention of asylum seekers and third country nationals (TCN). While the deadline for the transposition of the Return Directive (2008/115) expired already in December 2010, several recent projects, resolutions and empirical data on administrative detention of third-country nationals (irregular migrants and/or asylum seekers) that are mentioned in section 2 of this Statement show that courts and tribunals of the Member States still face important and difficult challenges concerning a harmonised approach to common standards and effective implementation of the rule of law in detention cases with respect to EU law and CJEU case-law, and with respect to case-law of the European Court of Human Rights (ECtHR). Additionally, detention of asylum seekers has been very poorly defined in the Reception Directive (2003/9) and in the Procedures Directive (2005/85). The Recast Reception Directive (2013/33) changed this by regulating much more detailed rules on detention of asylum seekers. The deadline for the transposition of the Recast Procedures Directive expired on 20 July 2015. The third EU legal source, which constitutes a focus of the project carried out under the auspices of the European Law Institute (ELI), is the Dublin III Regulation (604/2013), which became directly applicable in early 2014. The case-law of the ECtHR on detention of asylum seekers and irregular migrants is extensive and very detailed in respect of the rule of law, while the case-law of the Court of Justice of the EU (CJEU) based on preliminary ruling procedures is more extensive for detention of irregular migrants as for asylum seekers. 5 Section 1. Introduction: Purpose and Methodology of the Project In line with the first indent of Article 3(2) of the ELI Articles of the Association, the ELI Statement on “Detention of Asylum Seekers and Irregular Migrants and the Rule of Law” aims at contributing to an effective implementation of due process standards and material law, including conditions of detention, based on an integrated approach in respect of EU secondary law, case-law of the CJEU and case-law of the ECtHR in judicial practices of the Member States. Its EU policy context can be linked to documents such as “A New EU Framework to Strengthen the Rule of Law” (COM(2014) 158 final/2) and the “European Agenda on Migration,” which sets several policy tools for immediate actions for an effective return system that would go hand in hand with a humane and dignified treatment of returnees and a proportionate use of coercive measures in line with fundamental rights and for a coherent implementation of the Common European Asylum System (CEAS), paying particular attention to the needs of vulnerable groups (COM(2015) 240 final). Section 2 of this Statement presents an introductory link between the rule of law and detention and illustrates it with statistical and empirical data on detention of asylum seekers and irregular migrants in Europe. Section 3 is entitled “Interplay of EU law, the ECHR and national law in the context the protection of human rights”. Here, the complex interplay between the three aforementioned protective systems is described from the standpoints of case-law of the CJEU, ECtHR and some national supreme or constitutional courts. This section serves to support the correct use of the three check-lists (sections 4-6), which constitute the major outputs of the ELI Statement. The check-list for each of the three secondary EU law instruments on detention (Dublin III Regulation, Return Directive and Recast Reception Directive) consists of approximately 40 basic standards or rules that might be relevant in judicial review of detention cases. In the check-lists, basic standards
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