EN - AIDA First Legal Briefing on Detention under the Dublin Regulation

ECRE has published its first AIDA Legal Briefing, focusing on the legality of detention of asylum seekers for the purpose of transfer to the Member State responsible for examining their application under the Dublin III Regulation.

The briefing discusses the new Article 28 of the Dublin III Regulation, which only expressly permits detention for the purpose of securing transfer procedures when there is a “significant risk of absconding” and subject to necessity, proportionality and insofar as less coercive alternative measures cannot be applied effectively. It also sketches out the applicable safeguards and conditions of detention under the Dublin III Regulation.

The briefing then examines the legality of detention of asylum seekers subject to Dublin procedures under the European Convention on Human Rights(ECHR) and its corresponding provision in the EU Charter of Fundamental Rights. Article 5(1)(f) ECHR allows states to detain non-nationals either to prevent them from “effecting an unauthorised entry” in their territory, or with a view to deporting them.

The assumption that asylum seekers are detainable as they are “effecting an unauthorised entry”, as suggested by the European Court of Human Rights in Saadi v United Kingdom, seemsuntenable under EU law, since the Asylum Procedures Directiveprovides asylum seekers with a right to remain on the territory of Member States pending a decision on their application. As the Court of Justice of the European Union has detailed in Cimade and GISTI, all rights attached to asylum seekers’ status remain applicable throughout the entire Dublin procedure, until a person has effectively reached the territory of the receiving country.

At the same time, the European Court of Human Rights has clarified that asylum seekers cannot be deported before their claim has been examined. In that sense, the Dublin Regulation creates a peculiar category of asylum seekers who may be removed from the territory of a Member State before their application is examined, falling outside the scope of Article 5(1)(f) ECHR. Under an appropriate reading of the ECHR, Dublin detention should not be permissible.

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