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EU ASYLUM ACQUE : Detention of asylum-seekers

EU ASYLUM ACQUE : Detention of asylum-seekers. Andrei Arjupin Daugavpils 28 June 2012 UNHCR Regional Office for the Baltic and Nordic Countries. Chronology : EU asylum legislation. 1999 : legal competence for asylum moved to EU

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EU ASYLUM ACQUE : Detention of asylum-seekers

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  1. EU ASYLUM ACQUE:Detention of asylum-seekers . Andrei Arjupin Daugavpils 28 June 2012 UNHCR Regional Office for the Baltic and Nordic Countries

  2. Chronology: EU asylum legislation 1999: legal competence for asylum moved to EU 2000-5: ‘first phase’ instruments enacted, aiming at harmonization of national law 2005-8: implementation – & evaluation 2008-11: Recast proposals under negotiation for most Directives/Regulation 2012: deadline for establishing the Common European Asylum System..? 2

  3. EU Asylum LawEU Charter of Fundamental Rights Article 6: Right to liberty and security Article 18: Right to asylum in due respect of the rule of the 1951 Convention

  4. Reception Conditions:Directive 2003/9/EC Aim: lay down common minimum standards for reception of asylum- seekers, ensuring dignified standard of living throughout the EU Art 2(k) – defines detention as “confinement of an asylum seeker by a member state within a particular place, where asylum seeker is deprived of his/her freedom of movement. Recital 10 & 13 – reception of asylum applicants in detention should be specifically designed to meet their needs 4

  5. Amended Reception Conditions Recast (June 2011) Proposes closer regulation ofdetention (new Art 8): • Requires to provide justification: (not merely for seeking asylum; subject to a necessitytest and A2D); • 4 grounds for detention defined: - determine/verify identity/citizenship; - determine elements of asylum claim (only in preliminary interview); - to decide on right to enter; - to protect national security/public order. Art 8(3)

  6. Amended Reception Directive Recast 2 • Conditions of detention – recast proposes ‘specialised detention facilities’ (i.e. not criminal prisons); “preferably” separately from irregular migrants; for “shortest possible period” and “delays in procedures shall not justify continuation of detention” • Reception Conditions to apply in detention; in Dublin cases • Limits on detention of vulnerable groups: only if it does not deteriorate the state of health - (?) a mechanism to identify special needs (Art 21-22) - (?) prohibition of detention of UAMs (Art 11 – “in particular circumstances”) • Judicial review of detention – at reasonable intervals; free legal assistance, Art 9(5) • A2D in the national law, Art 8(4)

  7. Dublin II Regulation EC 343/2003applied with Eurodac Regulation EC 2725/2000 Binds all MS plus NO, CH, IS Aimed at determining the state responsible for determining an asylum claim Application shall be examined ‘by a single Member State’ (Art 3(1)) Eurodac: fingerprint database for asylum- seekers and irregularly entering/present people 7

  8. Dublin II Recast Proposal (2008): EC proposes: Wider ‘discretionary clause’ – allowing MS to take responsibility in more cases More entitlements for unaccompanied/ separated children – no detention of UAMs - Art 27(11)! Limits on detention under Dublin(necessity test?, A2D, only after notification about transfer, “shortest possible period”) Risk of absconding– criteria to be defined by law! Increased procedural safeguards, including practical means to appeal against transfers, linguistic/free legal assistance NB! Art 27 – no provisions on detention conditions and guarantees for detained unlike in the amended Recast RCD/ Returns Directive

  9. ASYLUM PROCEDURES DIRECTIVE, 2005/85/EC Aim: to establish minimum standards for procedures for determining applications for refugee status Provides a set of minimum safeguards, including: - prohibition against detention of asylum-seekers (Art 18), unless justified + speedy judicial review; - legal advisor or counsellor has access to closed areas, such as detention facilities & transit zones (Article 16(2)); - UNHCR allowed to access to asylum-seekers, including those in detention & in airport or port transit zones (Article 21(1)); Also, confirms the right to an ‘effective remedy’ against negative first instance decisions. 9 9

  10. Asylum Procedures Directive Recast (Dec 09- June 11) EC proposed: • Definition of PSN - Art 2(d) • New provisions enhancing access – including obligation to ‘ensure an effective opportunity’ for person ‘wishing’ to lodge an application – Art 6(2) • Information/interpretation for a/s at BCPs/ transit/ DCs - Art 7(1) and 7(2) • Mandatory check on Non-Refoulement in case of extradition to a third country - Art 8(3) • Duty to cooperate – Art 12 (1) 10

  11. Asylum Procedures Recast (2) • Effective remedies – in principle, a suspensive effect must apply to appeals – OR at least a right to request suspensive effect: (based on ECtHR case-law in M.S.S. v Belgium and Greece, App. 30696/09, 21 Jan 2011, para385 and further; also Gebremedhin v France, App. 25389/05, 26 Apr 2007) 11

  12. UNHCR practical recommendations foralternatives to detention • UNHCR Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum- Seekers, 26 February 1999. • Provide practical guidance on the interpretation and application of Art. 31(1), specify exceptions to the general rule that asylum-seekers should not be detained, establish procedural safeguards, and suggest alternatives to detention; • The detentionof asylum-seekers, in the view of UNHCR, is inherently undesirable.

  13. Practical recommendations foralternatives to detention • In accordance with the international legal framework and the EU Aquis, the ruleis that asylum-seekers and refugees should enjoy the right to freedom of movement. • If for any reason MS/s need to ensure the presence of asylum applicants in certain specific places, this can be done through: • Reporting mechanisms • Sureties by 3rd parties (guarantors) including by associations/ organisations • Release to case-worker or coach(social workers to follow the case) • Bail (practically used in UK, other countries has it also) • Surrender of passport • Electronic monitoring(with the proviso that electronic monitoring be conducted in a manner in full compliance with fundamental human rights, DNK/PTG/UK)

  14. If not feasible then,Procedural Safeguards to be respected • Anyone detained must be informed immediately in a language that s/he understands of the reasons for her/his detention and on how to appeal. • The person detained should be entitled to a speedy judicial review by an independent authority so that a court can decide without delay on the lawfulness of the detention (also children accompanying the detained person – Popov v France, 19 Jan 2012). • Should the arrest prove unlawful, the detained person has a right to compensation. (Lokpo and Toure v. Hungary, App. 10816/10, 20.Sep 2011) • The grounds for detention must be established by law (Saadi v. the UK, ECtHR, App. No. 13229/03, 29 Jan. 2008). • The shortest possible time limit for detention must be established (Nasrulloyev v Russia, App.656/06, 24 Apr 2008; Ismoilov v Russia, 2947/06, 11 Dec 2008). • Asylum-seekers should not be detained in the same premises as criminals.

  15. Procedural safeguards (cont): • UNHCR and NGOs must have accelerated access to the person in custody. • Detention should be regularly reviewed by a court. • Detention must not be an obstacle to asylum (I.M. v France, App No. 9152/09, 02 Feb 2012 ). • Applications for protection made by asylum-seekers in detention should be prioritized. • Conditions of detention must be in accordance with the full respect of the human rights of the detained person. • Persons with specific needs and children should not be detained (Rahimi v. Greece, ECtHR, App. No. 8687/08, 5 April 2011; Kanagaratnam v Belgium, App. 15297/09, 13 Dec 2011; Popov v France, App. 39472/07, 19 Jan 2012). • Children should not be separated from their parents or guardians.

  16. Exceptional grounds for detention under UNHCR 1999 Guidelines: In case of necessity, detention can be used: 1. In situations when identity is undetermined or in dispute; 2. For preliminary interview - to determine the elements of asylum claim; 3. Where there is an intention to mislead the authorities; 4. Where there is evidence to show that the asylum-seeker has criminal antecedents and/or affiliations likely to pose a risk to public order/ national security. Shall be prescribed by national law, which should be in conformity with general norms and principles of IHRL, A2D considered first

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