EN - AIDA Fourth Legal Briefing : The Legality of Examining Asylum Claims in Detention from the Perspective of Procedural Rights and their Effectiveness

ECRE has published its fourth AIDA Legal Briefing, focusing on the adjudication of asylum claims in detention and its impact on human rights. The briefing finds that any assessment of the legality of detention should take place not only from compliance with grounds, necessity and proportionality – as seen for example in the AIDA Legal Briefing on the legality of detention under the Dublin Regulation – but also from a procedural rights angle related to the substantive asylum claim itself.

The general principle of effectiveness under European Union (EU) law, as interpreted by the Court of Justice of the European Union (CJEU), requires that limitations on EU rights are not restricted to that which impairs the very essence of the right. Any limitation must be proportionate to the means employed and the aim pursued with regard to the contextual environment of the procedure, as well as the claimant.

Given the individual rights at stake within an asylum process (namely the right to be heard and the right to an effective remedy under the EU Charter of Fundamental Rights), the complexity of the procedure, language barriers and the multitude of tasks which the applicant must undertake as a consequence of a detention order, refugee status determination procedures and appeals carried out in detention fall considerably short of the requirements of effectiveness. By way of a considerable knock-on effect, then, it is submitted that detention and the conditions that this gives rise to in practice are extreamely difficult to reconcile with the guarantees required by asylum procedures and most notably the effectiveness of these rights, thereby making detention unlawful from the perspective of procedural rights.

For further information, see:

AIDA, Common asylum system at a turning point: Refugees caught in Europe’s solidarity crisis, Annual Report 2014/2015.


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