On the one hand, the guidelines that may be inferred from the CJ's jurisprudence in regard to the interpretation of the notion of a 'risk of absconding' are as yet scarce, in particular taking into account the diversity of interpretations on a domestic level. On the other hand, under the ECtHR's case-law the risk of absconding is immaterial from the perspective of Article 5(1)(f) of the ECHR. It is considered by the court only incidentally and on a case-by-case basis. As a result, the interpretation of this notion is mostly left to the discretion of the Member States, which in practice tend to apply it in a broad manner, disregarding that under the ECHR and EU Charter any limitations to the right to liberty should be interpreted narrowly.**1804**

### **4. Public Order and National Security**

The reasons of public order or national security are not explicitly listed in Article 5(1) of the ECHR as permissible grounds for an arrest or detention. The Strasbourg Court clearly states that deprivation of liberty based solely on those reasons does not fit into Article 5(1)(f) of the ECHR—neither the first nor the second limb. In the case of *A. and Others v. the United Kingdom,* the court found that the detention of the suspected terrorists had not been 'with a view to deportation' because in their countries of origin there had been a real risk that they would be subject to ill-treatment contrary to Article 3 of the ECHR, so there had been no realistic prospect of their removal there. They were

1803 See also CJ, case C-60/16 *Amayry* (2017), para 31.

1804 See also Majcher and de Senarclens (2014), 5; ECRE (2015), 4; Vavoula (2019), 1064.

1802 Ibid., paras 62, 65. See also den Heijer (2020), 553, claiming that the CJ reached here a 'workable compromise' between the protection against arbitrariness and the effective application of the Dublin Regulation.

deprived of liberty solely due to security considerations. Thus, their detention did not fall under Article 5(1)(f) of the ECHR.**1805** The ECtHR stressed that sub-paragraphs (a) to (f) amount to an exhaustive list of exceptions and that only a narrow interpretation of these exceptions is compatible with the aims of Article 5. If detention does not fit within the confines of the sub-paragraphs as interpreted by the Court, it cannot be made to fit by an appeal to the need to balance the interests of the State against those of the detainee.**1806**

Accordingly, the Government's argument that it had been permissible under Article 5 of the ECHR to strike a balance between a person's right to liberty and the protection of population from terrorists was rejected.

In the case of *Al Husin v. Bosnia and Herzegovina,* the ECtHR analysed additionally whether detention of the asylum seeker based solely on security grounds could fit into other subparagraphs of Article 5(1) of the ECHR. Only subparagraph (c) was found to be relevant.**1807** The court recalled that this provision 'does not permit a policy of general prevention directed against a person or a category of persons who are perceived by the authorities, rightly or wrongly, as being dangerous or having propensity to unlawful acts. It does no more than afford the Contracting States a means of preventing offences which are concrete and specific as regards, in particular, the place and time of their commission and their victims.' Moreover, subparagraph (c) allows for an arrest or detention only in connection with criminal proceedings. Meanwhile, in the case of *Al Husin,* the Government did not invoke any particular offence that the asylum seeker had to be prevented from committing. Moreover, the expulsion proceedings were initiated only after he had been detained for more than two years. Thus, the asylum seeker's deprivation of liberty could be justified under neither subparagraph (c) nor (f).**1808**

Both in the *A. and Others* and *Al Husin* cases the concerned foreigners were deprived of liberty solely on the grounds of public order or national security, and thus their detention could not be covered by Article 5(1)(f) of the ECHR. However, when security considerations are invoked by the national authorities as a reason to detain, but also expulsion proceedings are concurrently in progress or the foreigner is waiting for a formal authorization to enter a state, the ECtHR unreservedly applies subparagraph (f).**1809** Then, the fact that a foreigner is considered a threat to public order or national security may affect the court's assessment of the requirements arising from Article 5(1) of the ECHR.**1810** In the case of *K.G. v. Belgium,* the court took the security considerations into account while examining the due diligence of the national authorities. It pointed out that the applicant's case had required important deliberations in respect to national security and risks upon return to Sri Lanka; thus, the case had demanded a careful examination. The period of thirteen months of detention in those circumstances was not considered unreasonable.**1811**

While the reasons of public order or national security are not mentioned in Article 5(1)(f) of the ECHR, the 2013 Reception Directive explicitly entitles states to detain asylum seekers on this ground.**1812** In the case of J.N.*,* the CJ was challenged with a preliminary question of whether such deprivation of liberty is compatible with Article 6 of the EU Charter and, consequently, Article 5(1)(f) of the ECHR. The concerned asylum seeker was detained under the national legislation transposing point (e) of the first subparagraph of Article 8(3) of the 2013 Reception Directive, during his fourth asylum proceedings, due to his previous numerous criminal activities.

The Luxembourg Court did not find that point (e) of the first subparagraph of Article 8(3) of the 2013 Reception Directive conflicted with Article 6 in conjunction with Article 52(1) of the EU Charter. The court held that a detention order based on security reasons 'genuinely meets an objective of general interest recognised by the European Union. Moreover, the protection of national security and public order also contributes to the protection of the rights and

*Kingdom,* no. 3455/05 (2009), §172, where the court highlighted that preventive detention without charge is 'incompatible with the fundamental right to liberty under Article 5 § 1, in the absence of a valid derogation under Article 15' of the ECHR.

1810 E.g. the requirement of lawfulness, see ECtHR, *Ahmed v. Romania,* no. 34621/03 (2010), §33. For more on this requirement, see this Chapter, Title II.

1811 ECtHR, *K.G. v. Belgium,* no. 52548/15 (2018), §§87, 89.

1812 Point (e) of the first subparagraph of Article 8(3) of the 2013 Reception Directive. See also Article 7(3) of the 2003 Reception Directive.

1809 See e.g. ECtHR, *Ahmed v. Romania,* no. 34621/03 (2010), §§7, 29; ECtHR, *M. and Others v. Bulgaria,* no. 41416/08 (2011), §§11–13; 66–77; ECtHR, *M.S. v. Belgium,* no. 50012/08 (2012), §§151–153.

342 Chapter 5: Detention

freedoms of others. Article 6 of the Charter states in this regard that everyone has the right not only to liberty but also to security of person'.**1813** As regards the principle of proportionality, the CJ stressed that

the detention of an applicant where the protection of national security or public order so requires is, by its very nature, an appropriate measure for protecting the public from the threat which the conduct of such a person represents and is thus suitable for attaining the objective pursued by point (e) of the first subparagraph of Article 8(3) of Directive 2013/33.**1814**

However, the CJ pointed out that any limitations to the right to liberty apply only when they are strictly necessary and the 2013 Reception Directive establishes a sufficient and 'strictly circumscribed framework' in which detention may be ordered. The rigorous circumscription of the states' powers to detain is also guaranteed by the CJ's strict reading of the concepts of 'national security' and 'public order'.**1815** The court concluded that 'the EU legislature struck a fair balance' between asylum seekers' right to liberty and the requirements relating to the protection of public order and national security.**1816**

Pursuant to the domestic jurisprudence applicable in the *J.N.* case, return decisions lapsed with the initiation of asylum proceedings. The Luxembourg Court pointed out that such a practice is unacceptable from the standpoint of the duty of sincere cooperation of the Member States, arising from Article 4(3) of the TEU, as well as being at odds with the requirements for effectiveness under the Return Directive. The court stressed that it is essential that 'a procedure opened under that directive, in the context of which a return decision, accompanied, as the case may be, by an entry ban, has been adopted, can be resumed at the stage at which it was interrupted, as soon as the application for international protection which interrupted it has been rejected at first instance'.**1817**

1813 CJ (GC), case C-601/15 PPU *J.N.* (2016), para 53.

1814 Ibid., para 55. See also Cornelisse (2017), 234, claiming that this passage is in direct contradiction with the ECtHR's judgment in the case of *A. and Others v. the United Kingdom.*

1815 CJ (GC), case C-601/15 PPU *J.N.* (2016), paras 56–67, and the case-law mentioned there. See also CJ (GC), case C-233/18 *Haqbin* (2019), paras 44, 52, where the court noticed that serious breaches of the rules of accommodation or seriously violent behaviour of an asylum seeker were 'capable of disrupting public order', thus, in those circumstances, he might be detained under point (e) of the first subparagraph of Article 8(3) of the 2013 Reception Directive. See also CJ, case C-18/19 *WM* (2020), para 46, where the CJ allowed for detention in prisons pending return proceedings due to public policy or public security (for more see this Chapter, Title VI).

1816 CJ (GC), case C-601/15 PPU *J.N.* (2016), paras 68, 70.

1817 Ibid., paras 75–76.

Only after making this conclusion did the court answer the question of the compatibility of point (e) of the first subparagraph of Article 8(3) of the 2013 Reception Directive with Article 5(1)(f) of the ECHR. Prompted by the referring court, the CJ briefly discussed the ECtHR's case of *Nabil and Others v. Hungary* and concluded that the fact that proceedings regarding an application for international protection are pending does not imply that the detention ceases to be 'with a view to deportation since an eventual rejection of that application may open the way to the enforcement of removal orders that have already been made'. Thus, when a procedure that has been opened under the Return Directive is resumed after the rejection of the asylum claim at first instance, 'action under that procedure is still 'being taken' for the purposes of the second limb of Article 5(1)(f) ECHR'. The court added that the detention under point (e) of the first subparagraph of Article 8(3) of the 2013 Reception Directive satisfies the requirements arising from the case-law of the Strasbourg Court in respect to Article 5(1) of the ECHR. The court maintained that 'the EU legislature, in adopting point (e) of the first subparagraph of Article 8(3) of Directive 2013/33, did not disregard the level of protection afforded by the second limb of Article 5(1)(f) of the ECHR'.**1818**

The Luxembourg Court addressed in the *J.N.* ruling only the desirable from the perspective of the EU law—situation where return decisions do not lapse with the initiation of asylum proceedings. Thus, it did not answer fully the preliminary questions that relied on the circumstances of the case, i.e. the facts that the order to leave the EU issued in regard to *J.N.* had lapsed, that he had a right to remain in the Netherlands pending asylum proceedings and that no return proceedings were ongoing nor was a removal being prepared at the time of his detention. In those circumstances, it would be difficult to establish that the foreigner's detention was compatible with the second limb of Article 5(1)(f) of the ECHR.**1819** Taking into account the referring court's claim that under domestic law *J.N.* was lawfully resident in the Netherlands, the application of the first limb of Article 5(1)(f) of the ECHR in regard to his detention would also be questionable.**1820** Meanwhile, the ECtHR reiterates

1818 Ibid., paras 77–81. Cf. FRA (2017), 43–44, stating that it is difficult to fit the detention to protect national security or public order into any of the grounds set out in Article 5(1) of the ECHR other than expressed in subparagraph (c).

1819 See also view of AG Sharpston delivered on 26 January 2016 in case C-601/15 PPU *J.N.,*  EU:C:2016:85, paras 61–63; Monina (2018), 171. For more on the second limb of Article 5(1)(f) of the ECHR, see this Chapter and Title, point 3.

1820 See also ECtHR, *K.G. v. Belgium,* no. 52548/15 (2018), §§78–80, where it was concluded that the situation of the long-term migrant who had unsuccessfully applied for asylum multiple times throughout the years he had spent in a hosting state (as had J.N. himself),

that deprivation of liberty based solely on public order or national security considerations does not fit into subparagraph (f). Therefore, it seems that referring to the desirable, not the factual, situation was the only way to find that point (e) of the first subparagraph of Article 8(3) of the 2013 Reception Directive was in compliance with Article 5(1)(f) of the ECHR in the specific circumstances of the *J.N.* case. Irrespective of the other reasons that prompted the CJ to decide that return decisions cannot lapse with the initiation of asylum proceedings, its struggle to find a way to interpret the secondary EU law in a manner that is in accordance with Article 5 of the ECHR**1821** shows that the Luxembourg Court is more regardful of the ECtHR's jurisprudence than it admits in the reasoning given in the *J.N.* judgment where it referred merely to the *Nabil and Others v. Hungary* and *Saadi v. the United Kingdom* cases.

However, it cannot be overlooked that in the *J.N.* case the CJ provides national courts with guidance only in a situation when a return decision had been issued before asylum proceedings were initiated. It does not answer the question of whether detention ordered on the grounds provided for in point (e) of the first subparagraph of Article 8(3) of the 2013 Reception Directive would be in compliance with the ECHR when return proceedings were not concluded or even initiated before the asylum proceedings. In fact, it is conceivable that it could be compatible with the first limb of Article 5(1)(f) of the ECHR but only if the detention were to be associated with the prevention of an unauthorized entry.**1822** Taking into consideration that point (e) of the first subparagraph of Article 8(3) of the 2013 Reception Directive is worded in a broad manner and that it is possible to interpret it inconsistently with the first

was not comparable—from the perspective of the first limb of Article 5(1)(f) of the ECHR to the situation of asylum seekers that had asked for international protection at the border upon entry to a state. For more on the first limb of Article 5(1)(f) of the ECHR, see this Chapter and Title, point1.

1821 In fact, it is clear from the observations submitted to the court that the governments and EU institutions struggled to fit the detention of J.N. into Article 5(1) of the ECHR as well. They tried to justify deprivation of liberty based on public order or national security considerations *inter alia* by referring to subparagraphs (b) or even (e) of this provision [see view of AG Sharpston delivered on 26 January 2016 in case C-601/15 PPU *J.N.,* EU:C:2016:85, paras 124–125].

1822 See also Peek and Tsourdi (2016), 1416, who noticed that to be compatible with Article 5(1)(f) of the ECHR point (e) of the first subparagraph of Article 8(3) of the 2013 Reception Directive must be invoked in a strict relation to point (c) of this provision. In fact, taking into account the ECtHR's case-law regarding the first limb of Article 5(1)(f) of the ECHR (see this Chapter and Title, point 1), it seems that points (a) and (b) could also be invoked next to the point (e). However, Peek and Tsourdi's view is in conflict with the CJ's jurisprudence stressing that each of the grounds of detention enumerated in Article 8(3) is self-standing [CJ (GC), case C-601/15 PPU *J.N.* (2016), para 59; CJ, case C-18/16 *K.* (2017), para 41].

limb of Article 5(1)(f) of the ECHR,**1823** it is regrettable that the CJ did not take a stand in this regard in the *J.N.* ruling.**1824**

Taking into account the significance that in the case of *J.N.* was accorded to the existence of a final return decision, it is interesting to look at this ruling from the perspective of the Return Directive. Under Article 15(1) of this act, security reasons are not explicitly provided for as grounds for detention. In the case of *Kadzoev,* the court stated outright that 'the possibility of detaining a person on grounds of public order and public safety cannot be based on Directive 2008/115'. The CJ stressed that the fact that a foreigner is not in possession of valid documents, that his conduct is aggressive and that he has no means of subsistence—the reasons for a continued detention invoked by the referring court—cannot constitute 'in itself' a ground for deprivation of liberty under this directive.**1825** Thus, pursuant to the Return Directive a foreigner cannot be detained solely for security reasons. It is arguable, though, that he may be deprived of liberty in order to prepare the return and/or carry out the removal process when public order and national security considerations exist.**1826** The CJ's insistence in the case of *J.N.* on finding a connection between the detention ordered for public order or national security reasons and the procedure continuously being open under the Return Directive may lead to a similar conclusion: pursuant to the 2013 Reception Directive an asylum seeker cannot be detained solely for security reasons.**1827** In fact, only one interpretation of point (e) of the first subparagraph of Article 8(3) of the 2013 Reception Directive seems to be compatible with the ECtHR's jurisprudence. Deprivation of liberty of an asylum seeker effected due to public order or national security considerations must be ordered 'to prevent effecting an unauthorised entry

1825 CJ (GC), case C-357/09 PPU *Kadzoev* (2009), paras 70–71.

1823 See also Moreno-Lax and Guild (2015), 521, pointing out that the grounds enumerated in Article 8(3) of the 2013 Reception Directive are 'vague and numerous and remain open to interpretation', in particular in regard to the reasons of public order and national security.

1824 See also Cornelisse (2017), 233; ECRE (2017) 'The Detention…', 9. Cf. Krommendijk (2018), 143, noticing that the *J.N.* judgment was considered useful for national judges despite its shortcomings.

into the country or of a person against whom action is being taken with a view to deportation or extradition' as well to be considered in accordance with Article 5(1)(f) of the ECHR.

### **V. Time-Limits and Duration**

The duration of the deprivation of liberty is in fact an important factor in the assessment of the lawfulness, proportionality and justification of detention. Accordingly, it has already been examined to some extent above, in Titles II–IV. Title V supplements the information in the preceding subchapters.

Under the ECHR, no fixed time-limits for immigration detention are established.**1828** The Strasbourg Court reiterates that such time-limits are also not required in national legislations.**1829** However, in some cases, the fact that a maximum duration of immigration detention was or was not guaranteed under domestic law did affect the court's assessment of the lawfulness of the deprivation of liberty.**1830** Firstly, when time-limits for immigration detention are provided for in the national law, they must be complied with for the detention to be considered lawful under Article 5(1) of the ECHR.**1831** Secondly, as the court explained in the case of *J.N. v. the United Kingdom,*

the existence or absence of time-limits is one of a number of factors which the Court might take into consideration in its overall assessment of whether domestic law was "sufficiently accessible, precise and foreseeable" (in other words, whether there existed "sufficient procedural safeguards against arbitrariness"). However, in and of themselves they are neither necessary nor sufficient to ensure compliance with the requirements of Article 5 § 1(f) (…).**1832**

1828 See e.g. ECtHR, *Auad v. Bulgaria,* no. 46390/10 (2011), §128; ECtHR, *Amie and Others v. Bulgaria,* no. 58149/08 (2013), §72; ECtHR, *J.N. v. the United Kingdom,* no. 37289/12 (2016), §§83, 90. See also ECtHR, *Mefaalani v. Cyprus,* nos. 3473/11 and 75381/11 (2016), §80, where the court directly stated: 'Unlike Article 15 of Directive 2008/115/EC, Article 5 § 1(f) of the Convention does not lay down maximum timelimits (…)'.

1829 See e.g. ECtHR, *A.H. and J.K. v. Cyprus,* nos. 41903/10 and 41911/10 (2015), §190; ECtHR, *J.N. v. the United Kingdom,* no. 37289/12 (2016), §93.

1830 See the overview of the respective case-law in ECtHR, *J.N. v. the United Kingdom,* no. 37289/12 (2016), §§83–86. For the requirement of lawfulness, see this Chapter, Title II.

Thus, whether there are time-limits to immigration detention under national law or not is an important—albeit not decisive in itself—factor in the examination of the 'quality of law'.

The lack of time-limits must be seen 'in the context of the immigration detention system taken as a whole'.**1833** Therefore, on the one hand, a system where time-limits are absent from the national legislation but sufficient procedural safeguards from arbitrariness are there is capable of being in compliance with the requirements arising from Article 5(1)(f) of the ECHR.**1834** In those circumstances, the due diligence of national authorities is of particular importance.**1835** On the other hand, the existence of time-limits in a domestic law and the authorities' compliance with them does not guarantee that the respective law is of sufficient quality nor that the deprivation of liberty would not be considered unlawful or arbitrary.**1836** For instance, in the case of *Auad v. Bulgaria,* the asylum seeker was detained for the maximum period permissible under the national law that had transposed the Return Directive, i.e. 18 months. The ECtHR stressed that respecting domestic time-limits was not enough to ensure compliance with the ECHR. As the national authorities had not been acting with due diligence, the court found that Article 5(1)(f) of the ECHR had been violated in this case.**1837**

Irrespective of the existence or absence of fixed time-limits in national law, the duration of immigration detention always must be reasonable taking into account the circumstances of a particular case. The Strasbourg Court reiterates that under Article 5(1)(f) of the ECHR, the length of deprivation of liberty should not exceed that reasonably required for the purpose pursued.**1838** Furthermore, the principle of proportionality applies to immigration

1833 ECtHR, *J.N. v. the United Kingdom,* no. 37289/12 (2016), §92.

detention only to the extent that it should not continue for an unreasonable length of time.**1839**

Under the second limb of Article 5(1)(f) of the ECHR, the vagueness of the requirement of a 'reasonable duration' may be to some extent balanced with the 'due diligence' test and the concept of a realistic prospect of removal. Those requirements were scrutinized in Title IV (point 3), so they are not analysed here again. However, it must be recalled that under the jurisprudence of the Strasbourg Court the fact that the duration of detention pending deportation has to be reasonable does not automatically mean that it must be short.**1840** In some cases, the ECtHR accepted as compatible with requirements arising from the second limb of the subparagraph (f) periods of a pre-removal detention amounting to years, even in regard to asylum seekers.**1841**

Under the first limb of Article 5(1)(f) of the ECHR, until a foreigner is granted a formal authorization to enter or stay in a state in accordance with national law,**1842** he can be detained for a reasonable period of time. In the *Suso Musa v. Malta* case, the applicant's detention pending asylum proceedings for more than six months was considered unreasonably lengthy, taking into account the inappropriateness of the conditions in the place of confinement.**1843** The same conclusion was reached in regard to the deprivation of liberty for three and half months of the asylum-seeking family in the case of *Kanagaratnam and Others v. Belgium.***1844** Conversely, in the case of *Moxamed Ismaaciil and Abdirahman Warsame v. Malta,* the court found that the foreigners' detention pending first-and second-instance asylum proceedings lasting

nearly twelve months that was effected in appropriate conditions had not exceeded the length reasonably required for the purpose pursued.**1845** Thus, it is more probable that the length of pre-admittance detention would be considered unreasonable when conditions of confinement are not suitable.**1846** Moreover, domestic authorities must prove—to justify the lengthy period of detention—that they took, without unnecessary delays, all the required steps during asylum proceedings. The court also notices that 'the connection with the ground of detention becomes less evident, as months go by and after a first-instance decision has been issued', in particular when the detention was based on the need to verify an asylum seeker's identity.**1847**

A careful examination of the court's jurisprudence pertaining to the first limb of Article 5(1)(f) of the ECHR enables elucidating the ambiguity regarding the permissible duration of detention pending asylum proceedings that arose after the *Saadi v. the United Kingdom* judgment.**1848** Firstly, the post-*Saadi*  interpretation that pre-admittance detention is allowed only up to seven days**1849** was overly hopeful. The ECtHR has accepted much longer periods of detention pending asylum proceedings. Secondly, as feared by some authors**1850**, the deprivation of liberty throughout the entire asylum procedure may be found to be in compliance with the ECHR.**1851** Thirdly, under the first limb of subparagraph (f) the infinite detention of asylum seekers is not permissible as its duration must be reasonable from the perspective of the purpose pursued. However, the answer to the question of whether the length was in fact reasonable depends on the very circumstances of a case.

1850 See e.g. PACE (2010) 'The detention…', 20.

1851 See e.g. ECtHR, *Longa Yonkeu v. Latvia,* no. 57229/09 (2011), §129; ECtHR, *Nassr Allah v. Latvia,* no. 66166/13 (2015), §60; ECtHR, *Moxamed Ismaaciil and Abdirahman Warsame v. Malta,* nos. 52160/13 and 52165/13 (2016), §§142–144; ECtHR, *Thimothawes v. Belgium,* no. 39061/11 (2017), §§66–82.

While under Article 5(1)(f) of the ECHR time-limits are considered neither necessary nor sufficient, the main restriction on the duration of detention is vague and the respective case-law of the Strasbourg Court is casuistic,**1852** the Return Directive seems to provide more legal certainty. Pursuant to Article 15,**1853** deprivation of liberty pending return shall be maintained for as short a period as possible and only as long as removal arrangements are in progress and executed with due diligence, provided that it is necessary to ensure successful removal.**1854** Time-limits of at maximum six months must be set in national legislations. They can be extended only in the circumstances specified in the directive for a restricted period not exceeding a further twelve months. Accordingly, under EU law a foreigner can be detained pending return proceedings and a removal for the maximum period of eighteen months.

In the case of *Kadzoev,* the CJ stressed that eighteen-month period cannot be extended in any circumstances, including the lack of valid documents and means of subsistence or aggressive conduct. When the eighteen-month time-limit expires, a foreigner must be immediately released.**1855** The question of whether a reasonable prospect of removal exists is immaterial in those circumstances.**1856** When a detainee applies for asylum, the deprivation of liberty ceases to be justified under the Return Directive, but may be continued in accordance with the secondary asylum law. However, then, in principle, the period of detention pending asylum proceedings is not calculated to the six- or twelve-month time-limits allowed pursuant to the Return Directive.**1857** In the case of *FMS and Others,* the court precluded national legislation that did not determine that the detention of a returnee is automatically considered unlawful after the expiration of the eighteen-month period and did not guarantee that deprivation of liberty is effected only as long as removal arrangements are in progress and executed with due diligence.**1858**

1852 See Ruiz Ramos (2020), 27–30.

1853 Article 15(1), (5) and (6) of the Return Directive.

1854 See also CJ (GC), case C-357/09 PPU *Kadzoev* (2009), para 64.

1855 CJ (GC), case C-357/09 PPU *Kadzoev* (2009), paras 69, 71. See also CJ, case C-146/14 PPU *Mahdi* (2014), para 58. See also ECtHR, *Auad v. Bulgaria,* no. 46390/10 (2011), §128, where the ECtHR first stated that 'the length of the detention should not exceed that reasonably required for the purpose pursued' and next pointed out that 'a similar point was recently made by the ECJ in relation to Article 15 of Directive 2008/115/EC' in the *Kadzoev* case.

1856 CJ (GC), case C-357/09 PPU *Kadzoev* (2009), paras 60–61. For the reasonable prospect of removal, see Title IV, point 3.

1857 CJ (GC), case C-357/09 PPU *Kadzoev* (2009), paras 40–48.

1858 CJ (GC), joint cases C-924/19 PPU and C-925/19 PPU *FMS and Others* (2020), para 280.

In the case of *El Dridi* the court explained that the maximum period of detention imposed on the Member States by the Return Directive 'serves the purpose of limiting the deprivation of third-country nationals' liberty in a situation of forced removal'. The Luxembourg Court highlighted also that the directive was intended to take account of 'the case-law of the European Court of Human Rights, according to which the principle of proportionality requires that the detention of a person against whom a deportation or extradition procedure is under way should not continue for an unreasonable length of time, that is, its length should not exceed that required for the purpose pursued'.**1859**

The 2013 Reception Directive does not lay down time-limits for a duration of detention pending asylum proceedings.**1860** Under Article 9(1), an applicant for international protection shall be detained for as short a period as possible and shall be kept in detention only for as long as the grounds for deprivation of liberty set out in the directive are applicable. Respective authorities must act diligently and delays that are not attributable to asylum seekers should not justify continued detention. Thus, it is arguable that applicants for international protection can be deprived of liberty for the entire asylum procedure in accordance with the secondary EU law, especially pursuant to points (b), (d) and (e) of the first subparagraph of Article 8(3) of the 2013 Reception Directive.**1861** However, interpretations to the contrary were also voiced by some authors.**1862**

Until recently, the CJ had not given much thought to the duration of detention of asylum seekers. It limited its respective considerations to repeating the rules arising from Article 9(1) of the 2013 Reception Directive**1863** and briefly stating that 'it must be ensured that that detention does not exceed, in any

1859 CJ, case C-61/11 PPU *El Dridi* (2011), para 43. The court referred to ECtHR (GC), *Saadi v. the United Kingdom,* no. 13229/03 (2008). See also CJ, case C-60/16 *Amayry* (2017), para 72, and Morano-Foadi (2015), 132.

case, as short a period as possible'**1864** as well as that the reasons for it must continue to be valid throughout the whole period of detention**1865**.

The case of *FMS and Others* provided some more guidance. The Luxembourg Court stressed that the lack of a maximum detention period in the case of asylum seekers is in accordance with Article 6 of the EU Charter provided that the detainee can benefit from real procedural guarantees that enable his release as soon as the deprivation of liberty is no longer necessary or proportional to its objective. In particular, where time-limits are absent from a national legislation, domestic authorities are required to act with due diligence. Therefore, it is acceptable that under national law the maximum period of detention is not determined when it is guaranteed that the detention is effected only for as long as the grounds for deprivation of liberty are applicable and the authorities act with due diligence.**1866**

Next, the CJ addressed the doubts concerning the period of detention related to border procedures. Under point (c) of the first subparagraph of Article 8(3) of the 2013 Reception Directive, applicants for international protection may be detained 'in order to decide, in the context of a procedure, on the applicant's right to enter the territory'. It has been voiced in the literature that this provision is closely intertwined with Article 43 of the 2013 Procedures Directive regulating border procedures and, accordingly, detention at the border can last only as long as those procedures, thus four weeks.**1867** The Luxembourg Court confirmed this interpretation in the *FMS and Others* ruling and specified that the four-week period should be counted from the day the asylum application is submitted.**1868**

In contrast to the 2013 Reception Directive, the Dublin III Regulation lays down deadlines that force national authorities to act diligently in securing a transfer and that limit the duration of detention preceding its enforcement. Under Article 28(3), when an asylum seeker is deprived of liberty, the period for submitting a take charge or take back request shall not exceed one month from the lodging of the application. The reply should be given in two weeks. The transfer shall be carried out as soon as practically possible, and at the latest within six weeks of the implicit or explicit acceptance of the request by

1867 See e.g. Moreno-Lax and Guild (2015), 526.

1866 CJ (GC), joint cases C-924/19 PPU and C-925/19 PPU *FMS and Others* (2020), paras 264–266. The court referred to ECtHR, *S.M.M. v. the United Kingdom,* no. 77450/12 (2017), §84, where the relation between the lack of time-limits and due diligence was highlighted. See also, critically to the court's 'license to long-lasting detention', Nagy (2020).

1868 CJ (GC), joint cases C-924/19 PPU and C-925/19 PPU *FMS and Others* (2020), paras 235–241. See also CJ (GC), case C-808/18 *Commission v Hungary* (2020), para 181.

the Member State to take charge or to take back the person concerned or of the moment when the appeal or review no longer has a suspensive effect in accordance with Article 27(3).**1869** When the requesting Member State fails to comply with the deadlines of one month or six weeks, the Dublin transferee must be released.

The wording of Article 28(3) is far from clear. In the case of *Amayry* the Luxembourg Court confirmed that the Dublin III Regulation fails to provide short, precise and uniform time-limits for detention. Firstly, the court found that under this provision two distinct periods of six weeks are established: the first counted from the acceptance of the request to take charge or take back, and the second counted from the moment when the suspensive effect of the appeal or review against a transfer decision ended. The number of days that an asylum seeker spent in detention under the first six-week period is not to be deducted from the second one.**1870** Thus, it seems that a Dublin transferee may be deprived of liberty for up to six weeks after the acceptance of a request, and if he appeals against a transfer decision within this period he may be deprived of freedom for the entire appeal procedure (if a suspensive effect is granted)**1871** and subsequently for additional six weeks. As to the starting point of detention, in the case of *Hassan,* the court added that foreigners can be detained 'even before the request to take charge or take back is submitted to the requested Member State'.**1872**

Moreover, in the *Amayry* judgment the CJ specified that not all Dublin transferees are protected from protracted detention by the time-limits provided for in Article 28(3) of the Dublin III Regulation. The Luxembourg Court decided that 'the period no longer than six weeks within which the transfer of a detained person must be carried out, laid down by that provision, applies only in the situation where the person concerned is already detained when one of the two events covered by that provision takes place'. Consequently, this time-limit is not binding when a detention was ordered after the acceptance of the request to take charge or take back or after the suspensive effect of the appeal or review against a transfer decision had ended. However, then, deprivation of liberty must still be effected for as short a period as possible and not for longer than the time reasonably necessary to complete the required administrative procedures with due diligence until the transfer is

1870 CJ, case C-60/16 *Amayry* (2017), paras 52–59.

1871 Cf. Hruschka and Maiani (2016), 1578.

1872 CJ, case C-647/16 *Hassan* (2018), para 67.

1869 As regards Article 27(4) of the Dublin III Regulation, see CJ, case C-60/16 *Amayry* (2017), paras 60–73. For more on the suspensive effect of the appeal, see Chapter 6, Title IV.

carried out.**1873** In this context, a period of three to twelve months, as allowed under the Swedish law, was considered by the Luxembourg Court excessive and not reasonably necessary for the prescribed administrative procedures to be conducted. Thus, the detention in those timeframes would not be in accordance with the Dublin III Regulation and Article 6 of the EU Charter. The CJ stressed that taking into account the simplified procedure between the Member States, the period of six weeks should be sufficient to proceed with a transfer. A period of two months may not necessarily be considered excessive but 'its suitability in relation to the facts of each specific case' must be assessed.**1874** Therefore, the time-limits arising from Article 28(3) of the Dublin III Regulation are not applicable to the detention of all transferees, but they might be instructive in the assessment of how much time is reasonably necessary to complete the required administrative procedures with due diligence until the transfer is carried out, as also demanded by this provision. Despite the ECtHR's highlighting of the reasonableness of duration of immigration detention in its caselaw, the CJ did not refer to this jurisprudence in the case of *Amayry.***1875**

It is difficult to answer in a definitive manner the question of for how long asylum seekers can be detained pending asylum and return proceedings in accordance with the ECHR and EU law. It depends to a great extent on national legislations and practice, as the requirements in this regard arising from the ECHR and EU law are vague and the respective case-law of both European asylum courts is either casuistic or insufficient. Only pursuant to the Return Directive are clear and absolute boundaries set in regard to the duration of detention, and the CJ guards them firmly.**1876** Nevertheless, the eighteenmonth time-limit for detention was criticized from the outset.**1877** The PACE has even stated that the EU adopted 'the lowest common standard with regard to length of detention thereby allowing European Union member states to practice long-term detention, and increasing the possibility for states to increase their minimum duration of detention'.**1878** In fact, as is often high-

1875 See, critically in this regard, Sadowski (2019), 51–52.

1873 CJ, case C-60/16 *Amayry* (2017), paras 39, 41–44. See also CJ (GC), case C-670/16 *Mengesteab* (2017), paras 91–92.

1874 CJ, case C-60/16 *Amayry* (2017), paras 45–47.

1876 See also Iglesias Sánchez (2015), 446. After the *FMS and Others* judgment, it may be concluded that the duration of detention related to border procedures is now also clearly set, see CJ (GC), joint cases C-924/19 PPU and C-925/19 PPU *FMS and Others* (2020), paras 235–241.

1877 See e.g. Baldaccini (2010), 130–131; Cornelisse (2010), 271; Mincheva (2010), 361; Wilsher (2011), 196; Mitsilegas (2016), 28–29.

1878 PACE (2010) 'Resolution 1707…', para 5.

lighted in the literature, with the transposition of the Return Directive the domestic time-limits for detention pending return were extended in nine Member States. However, what is missed is that two states had to lower their respective time-limits and eight states had to establish theirs, as time-limits had been absent from their legislations before. Moreover, some Member States opted for a lower maximum duration of pre-removal detention than eighteen months.**1879** While the Return Directive provides for the upper ceiling in this regard, it cannot be overlooked that the Strasbourg Court in some cases considered as 'reasonable' longer periods of deprivation of liberty preceding the return than eighteen months.

### **VI. Place and Conditions**

Under Article 5(1) of the ECHR, the Strasbourg Court reiterates that 'there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention'.**1880** Thus, when asylum seekers are to be detained pursuant to subparagraph (f), national authorities choosing the place of their confinement should bear in mind that 'the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country'.**1881** A deprivation of liberty that is effected in an inappropriate place or under inappropriate conditions may be considered arbitrary.

While the court's explanations with regard to conditions of detention under Article 5 of the ECHR are mostly short and concise, the more developed guidance on the minimum standard that is required in this respect may be found in its jurisprudence concerning Article 3. It is the minimum standard indeed, as it determines what conditions constitute an inhuman or degrading treatment prohibited under this provision. The ECtHR stresses in general that detention conditions must be 'compatible with respect for human dignity' and should not 'subject the detainees to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention'. Moreover, the health and well-being of detainees must be 'adequately secured'.**1882** For a violation of Article 3 of the ECHR to be found, a particular level of severity

§111; ECtHR, *Haghilo v. Cyprus,* no. 47920/12 (2019), §203.

1882 See e.g. ECtHR (GC), *Z.A. and Others v. Russia,* nos. 61411/15 etc. (2019), §182.

must be attained. Its assessment is relative and depends on the circumstances of a particular case.**1883**

The ECtHR concentrates less on the place of detention than on the factual conditions therein. It seems that none of the places would be branded by the court as inappropriate for immigration detention *a priori,* without a thorough examination of the specific conditions that the applicants had to endure there.**1884** However, the Strasbourg Court is aware that the choice of a place of detention determines conditions there. For instance, it has stated that 'police stations and other similar establishments which, by their very nature, are places designed to accommodate people for very short durations, are not appropriate places for the detention of people who are waiting for the application of an administrative measure, such as deportation'.**1885** Similar conclusions were reached by the court in regard to transit zones at airports.**1886** Nevertheless, even those general findings were preceded or followed by the rigorous examination of the specific conditions in which the deprivation of liberty had been effected in a particular case.**1887**

When the Strasbourg Court assesses the compliance of the conditions in which the detention order was implemented with the requirements arising from Article 3 of the ECHR, it takes account of 'the cumulative effects of these conditions, as well as of specific allegations made by the applicant' and the length of detention.**1888** The court underlines that detainees must have sufficient personal space, access to outdoor exercise, natural light and fresh air. Ventilation must be in place, as must the possibility to use a toilet in private. Heating arrangements should be adequate and basic sanitary and hygiene requirements have to be complied with.**1889** Overcrowding in itself may entail a violation of Article 3 of the ECHR.**1890** Moreover, the ECtHR reproached states

*Others v. Italy,* no. 16483/12 (2016), §§164–167; ECtHR, *HA. A. v. Greece,* no. 58387/11(2016), §§28–31.

when they had hold foreigners for months without: any or appropriate sleeping facilities; access to organized and balanced meals, drinking water, medical care and social assistance; the possibility to counteract heat or cold; or the possibility to contact family or legal representatives.**1891**

The Strasbourg Court emphasizes that asylum seekers are vulnerable and conditions of their detention must be adapted accordingly.**1892** In the case of *M.S.S. v. Belgium and Greece,* the Grand Chamber stated outright that 'the applicant, being an asylum-seeker, was particularly vulnerable because of everything he had been through during his migration and the traumatic experiences he was likely to have endured previously'. The conditions of detention that the applicant had to endure—even though he had been deprived of liberty for only short periods of time—were found to be degrading and his 'distress was accentuated by the vulnerability inherent in his situation as an asylum-seeker'.**1893** In the more recent case of *Z.A. and Others v. Russia,* concerning foreigners held for months in degrading conditions in the airport's transit zone, this approach to the vulnerability of asylum seekers *per se* was confirmed.**1894** However, the court's stance in this regard is in fact much more nuanced. In some cases, the situation of the detained asylum seeker was considered further aggravated by his personal circumstances, which had made the conditions that he had to endure even more inappropriate.**1895** In

1891 See e.g. ECtHR, *Dougoz v. Greece,* no. 40907/98 (2001), §48; ECtHR, *Tabesh v. Greece,* no. 8256/07 (2009), §109; ECtHR, *S.D. v. Greece,* no. 53541/07 (2009), §51; ECtHR (GC), *M.S.S. v. Belgium and Greece,* no. 30696/09 (2011), §§230–231; ECtHR, *Aden Ahmed v. Malta,* no. 55352/12 (2013), §94; ECtHR, *Mahamed Jama v. Malta,* no. 10290/13 (2015), §98; ECtHR, *S.F. and Others v. Bulgaria,* no. 8138/16 (2017), §§84–90; ECtHR (GC), *Z.A. and Others v. Russia,* nos. 61411/15 etc. (2019), §191; ECtHR (GC), *Ilias and Ahmed v. Hungary,* no. 47287/15 (2019), §194; ECtHR, *SH.D. and Others v. Greece etc.,* no. 14165/16 (2019), §49. Cf. ECtHR, *Z.N.S. v. Turkey,* no. 21896/08 (2010), §§82–87.

other cases, when the conditions of the asylum seekers' confinement were found to be generally acceptable from the perspective of Article 3 of the ECHR, the ECtHR emphasized that the applicant must show that he had been more vulnerable than other asylum seekers detained in the same place and that on account of this vulnerability the conditions of his confinement were unsuitable.**1896**

It is clear from the court's jurisprudence that vulnerabilities must be tended to in immigration detention. The Strasbourg Court has stressed that the conditions there have to be adequate from the perspective of the specific needs of ill foreigners**1897**, the elderly**1898** or women**1899**. In the case of *O.M. v. Hungary,* concerning the deprivation of liberty of the homosexual asylum seeker, the Strasbourg Court stated

in the course of placement of asylum seekers who claim to be a part of a vulnerable group in the country which they had to leave, the authorities should exercise particular care in order to avoid situations which may reproduce the plight that forced these persons to flee in the first place.**1900**

Therefore, the national authorities should have considered whether the applicant as an LGBT person would be safe in a detention centre, because other foreigners staying there could 'have come from countries with widespread cultural or religious prejudice against such persons'.**1901**

The ECtHR is particularly strict in regard to conditions in which minors are deprived of liberty.**1902** The court reiterates that 'children have specific needs that are related in particular to their age and lack of independence, but also to their asylum-seeker status' and 'the child's extreme vulnerability is the

238–239, stating that the court's approach in this regard renders the application of Article 5(1)(f) of the ECHR to detention of families practically impossible.

decisive factor and takes precedence over considerations relating to the status of illegal immigrant'.**1903** Detention conditions for asylum-seeking minors must be adapted to their age and needs to ensure that they do not entail 'stress and anxiety, with particularly traumatic consequences'.**1904** The ECtHR holds that children should have regular access to sufficient indoor and outdoor play areas, receive proper counselling and educational assistance from qualified personnel specially mandated for that purpose, and be sufficiently separated from unrelated adults to enjoy enough privacy with their family. Moreover, furnishings in rooms occupied by children have to be appropriate and secure for them.**1905**

Minors should not be held in the prison-like conditions.**1906** In the recent case of *Bilalova and Others v. Poland,* the court clearly stated that it has now been well-established that, in principle, the confinement of young children in such conditions should be avoided and only a short-term detention of minors in a suitable environment could be found compatible with the ECHR.**1907** Therefore, even very short periods of deprivation of liberty in conditions that are inappropriate for children may amount to a violation of Article 3 of the ECHR.**1908** Furthermore, even if accompanied minors are placed in a detention centre earmarked for families, Article 3 of the ECHR still may be found to be breached if the conditions there are not adapted to their needs and age.**1909** Moreover, unaccompanied minors cannot be detained in places designed for

1905 See e.g. ECtHR, *Mublilanzila Mayeka and Kaniki Mitunga v. Belgium,* no. 13178/03 (2006), §§50–52; ECtHR, *Popov v. France,* nos. 39472/07 and 39474/07 (2012), §§95–96, 100–103; ECtHR, *Mahmundi and Others v. Greece,* no. 14902/10 (2012), §§72–73; ECtHR, *Abdullahi Elmi and Aweys Abubakar v. Malta,* nos. 25794/13 and 28151/13 (2016), §§111–114; ECtHR, *A.B. and Others v. France,* no. 11593/12 (2016), §§112–115; ECtHR, *A.M. and Others v. France,* no. 24587/12 (2016), §§49–53; ECtHR, *G.B. and Others v. Turkey,* no. 4633/15 (2019), §§116–117.

1906 Those conditions include e.g. a strong police presence, wire netting over a courtyard, a tight grill over windows or constant announcements made through the loudspeakers, see e.g. ECtHR, *Popov v. France,* nos. 39472/07 and 39474/07 (2012), §§95, 102–103; ECtHR, *A.B. and Others v. France,* no. 11593/12 (2016), §113.

1907 ECtHR, *Bilalova and Others v. Poland,* no. 23685/14 (2020), §79.

adults. When a five-year-old had been deprived of liberty in such a place for two months without any member of her family, the court concluded that her 'detention in such conditions demonstrated a lack of humanity to such a degree that it amounted to inhuman treatment'.**1910**

The ECtHR's case-law clearly shows that achieving the minimum standard that is required under Article 3 of the ECHR in regard to conditions in immigration detention is more than difficult for some states. Governments try to justify the violations by relying on their inability to cope with the migration crisis. The Strasbourg Court most often responds that it is aware of and does not underestimate the difficulties in managing the increasing influx of foreigners at the European border. Then, the court points out that Article 3 of the ECHR has an absolute character, and thus those problems cannot absolve states of their obligations under that provision.**1911** However, in the case of *Khlaifia and Others v. Italy,* the Grand Chamber mitigated this firm approach and added that the extreme difficulties resulting from the migration crisis cannot, in themselves, justify breaching Article 3 of the ECHR, but they must be taken into account by the court as the general context of a case.**1912**

The EU law incorporates to some extent the minimum standard established by the ECtHR under Articles 3 and 5(1) of the ECHR.**1913** Asylum seekers and returnees can be detained only in specialized facilities, where they should have access to open-air spaces and contact with the UNHCR, legal advisers, family members etc. The health of a detainee must be of primary concern. Minors can be detained only as a measure of last resort and for the shortest appropriate period of time. When deprived of freedom, they shall have the possibility to engage in leisure activities and have access to education. Asylum-

1910 ECtHR, *Mublilanzila Mayeka and Kaniki Mitunga v. Belgium,* no. 13178/03 (2006), §§50–59. See Dembour (2015), 389–392, pointing out that the fact that the ECtHR used such strong words was unusual and that the court reached 'a tipping point' in this case. See also ECtHR, *Moustahi v. France,* no. 9347/14 (2020), §§66–67. Cf. ECtHR, *Nur and Others v. Ukraine,* no. 77647/11 (2020), §91, where the court found—in regard to the detention in good conditions of the seventeen-year-old girl—that 'the sole fact that the applicant was held with adults can be considered to amount to a violation of Article 3 of the Convention'.

seeking unaccompanied minors should not be accommodated with adults. Specified special needs of families and females also have to be addressed. Human dignity must be respected and protected.

Nevertheless, some provisions of the EU law may be found to be questionable from the perspective of the ECHR. Firstly, the 2013 Reception Directive and the Return Directive provide for a possibility to derogate from some of the above-mentioned rules in specified circumstances.**1914** Secondly, both directives allow, albeit exceptionally, for the deprivation of liberty of asylum seekers and returnees in prisons. Only asylum-seeking unaccompanied minors cannot be detained there. When a Member State must resort to such accommodation, the foreigners shall be kept separate from ordinary prisoners and the detention conditions provided for in the directives shall still apply.**1915**

As regards detention in prisons, only Article 16(1) of the Return Directive has been interpreted by the CJ.**1916** In the case of *Bero and Bouzalmate,* the court explained that, as a rule, returnees should be detained in specialized facilities. It stressed that the second sentence of Article 16(1) of the Return Directive, allowing for deprivation of liberty in prisons, 'lays down a derogation from that principle, which, as such, must be interpreted strictly'.**1917** Thus, it is not acceptable to detain a foreigner in prison only because there is no specialized facility for that purpose in a particular federated state of a Member State. National authorities must 'be able to detain third-country nationals in specialised detention facilities'. In Member States that have a federal structure, like Germany, such facilities should be established in each federated state or, when that is not possible, it should be ensured that returnees are accommodated in a specialized facility in another federated state than the federated state competent to decide on their detention under national law.**1918**

In the case of *Pham,* the Vietnamese national consented in writing to being detained pending return proceedings in a prison together with ordinary prisoners, her compatriots. The Luxembourg Court held that the EU law does not provide for any exception from the obligation requiring foreigners to be kept separated from ordinary prisoners. It is 'a guarantee of observance of the rights which have been expressly accorded by the EU legislature to those third-country nationals in the context of the conditions relating to detention in prison accommodation for the purpose of removal'. Detention in a prison together with ordinary prisoners is not consistent with the directive, so the Member States cannot take into account the wishes of a foreigner concerned to that effect.**1919**

While both above-mentioned judgments were welcomed in the literature and did curtail the objectionable practices in the Member States,**1920** the CJ did not explain there how far the separation from ordinary prisoners should go**1921** or what circumstances would justify accommodation in prisons. Only in the *WM* case was the court challenged with the second question. First, the court confirmed the relation between the second sentence of Article 16(1) and Article 18(1) of the Return Directive.**1922** The 'emergency situation' described in the latter provision (i.e. exceptionally large numbers of returnees) can constitute a ground for a derogation from the rule that returnees must be accommodated in specialized facilities. However, it is not the only permissible reason for placing third country nationals in prisons during return proceedings. The court decided that also in other exceptional circumstances, where national authorities cannot comply with the objectives of the Return Directive, a prison accommodation may be resorted to in accordance with the EU law.**1923** The court stressed that a threat to public policy and public security, as in the main proceedings,

may justify, in exceptional cases, the detention of a third-country national, for the purpose of removal, in prison accommodation, separated from

1920 See e.g. Sheridan (2015), 64.

1922 The opinions on the relation between Article 16(1) and Article 18(1) of the Return Directive varied, see opinion of AG Bot delivered on 30 April 2014 in joined cases C-473/13 and C-514/13 *Bero and Bouzalmate* and case C-474/13 *Pham,* EU:C:2014:336, para 136; European Commission (2017), 147; Mancano (2019), 72.

1919 CJ (GC), case C-474/13 *Pham* (2014), paras 19–23. The distinction between criminal and administrative detention of returnees was even more reinforced in CJ, case C-61/11 PPU *El Dridi* (2011) and CJ (GC), case C-329/11 *Achughbabian* (2011) [see Mancano (2019), 67 fn 19].

1921 See Majcher (2014). AG Pikamäe tried to answer this question in his opinion delivered on 27 February 2020 in case C-18/19 *WM,* EU:C:2020:130, paras 129–135.

ordinary prisoners, pursuant to the second sentence of Article 16(1) of Directive 2008/115, for the purpose of ensuring the smooth progress of the removal procedure, in accordance with the objectives pursued by that directive.**1924**

The court stipulated that the detention in prison would be justified only when a detainee's 'individual conduct represents a genuine, present and sufficiently serious threat, affecting one of the fundamental interests of society or the internal or external security of the Member State concerned'.**1925**

In neither of the above-mentioned rulings did the Luxembourg Court consider whether the accommodation of asylum seekers and returnees in prisons is coherent with the ECHR and the jurisprudence of the Strasbourg Court.**1926** AG Bot stated that Article 16(1) of the Return Directive transposed the case-law of the ECtHR established under Articles 3, 5 and 8 of the ECHR. He specified the conditions in immigration detention required by the Strasbourg Court and concluded that the ECtHR had 'ruled that prison is not an 'appropriate' or 'suitable' place for the accommodation and detention of third-country nationals awaiting removal'.**1927** The AG relied on the ECtHR's case of *Popov v. France;* however, he omitted that in this case—as in many others—Articles 3 and 5(1) (f) of the ECHR had been considered violated only in respect to the children, not their parents. In regard to adults, the prison-like conditions of detention did not attain the level of severity required for a violation of the prohibition of inhuman and degrading treatment to be found nor did they entail arbitrariness in the deprivation of liberty.**1928** Therefore, the conclusion reached by the AG that the Strasbourg Court considered prisons *per se* as unsuitable accommodation for the purpose of immigration detention could not be unequivocally drawn from the *Popov v. France* case. The question is, however, whether

this conclusion was in fact justified. As shown above, the Strasbourg Court is clear that immigration detention of children cannot be effected in prisonlike conditions. Thus, it is safe to conclude that the deprivation of liberty of minors (both accompanied and unaccompanied) in prisons would be even more unacceptable from the perspective of the ECHR.**1929** In regard to adults, the answer is not as straightforward. On the one hand, the ECtHR reiterates that 'there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention'**1930** and that it must be taken into account that immigration detention 'is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country'**1931**. The above clearly suggests that asylum seekers deprived of liberty in accordance with Article 5(1) (f) of the ECHR should be treated differently from ordinary prisoners. Thus, depriving asylum seekers of liberty in prisons together with and in the same conditions as convicted persons seems to be in violation of the ECHR. On the other hand, the Strasbourg Court does not disqualify any place of confinement without a thorough analysis of the conditions therein. In a situation when a state must—due to exceptional circumstances as determined by the CJ—resort to a prison accommodation where adult asylum seekers or returnees are treated in accordance with their status, thus not in the same manner as ordinary prisoners, and where conditions do not constitute inhuman or degrading treatment, it is conceivable that the ECtHR would accept such a solution as compatible with the requirements arising from the ECHR.**1932** It seems also to be in accordance with Article 16(1) of the Return Directive (and Article 10(1) of the 2013 Reception Directive that has a similar wording) and the interpretation of this provision delivered by the Luxembourg Court in the cases of *Bero and Bouzalmate, Pham* and *WM.*

1929 Meanwhile, only asylum-seeking unaccompanied minors cannot be detained in prisons under the EU law. *A contrario,* accompanied asylum-seeking children and all minors awaiting removal can be deprived of liberty in prisons in accordance with the 2013 Reception Directive and the Return Directive.

1930 ECtHR, *Riad and Idiab v. Belgium,* nos. 29787/03 and 29810/03 (2008), §77.

1931 See e.g. ECtHR, *Amuur v. France,* no. 19776/92 (1996), §43.

1932 See also Peek and Tsourdi (2016), 1424. Cf. Sheridan (2015), 59, 62, claiming that the long-term accommodation of asylum seekers in prisons or police cells is questionable from the standpoint of the respect for human dignity and that in this regard the same rationale as in the case of ECtHR, *Mublilanzila Mayeka and Kaniki Mitunga v. Belgium,* no. 13178/03 (2006) could be applied. In this case, the court stated that detaining the unaccompanied minor with adults in a facility not adapted to her needs had violated Article 5 of the ECHR.

### **VII. Procedural Safeguards**

### **1. Right to Information**

According to Article 5(2) of the ECHR, everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. The ECtHR applies this provision also to immigration detention.**1933**

The Strasbourg Court reproaches national authorities for not giving foreigners information about the grounds for their detention.**1934** The communication of those reasons must be done with respect to the requirements established by the ECtHR. The information does not have to be provided in writing**1935** but it must be comprehensible**1936**. The ECtHR reiterates that

paragraph 2 of Article 5 contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph 2 any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4.**1937**

Thus, the procedural safeguards expressed in paragraphs 2 and 4 of Article 5 of the ECHR are closely intertwined.**1938** The information about the reasons on which the deprivation of liberty is based on should allow the legality of the detention in question to be contested.**1939**

There is also a link between the lawfulness requirement and the right to information. The Strasbourg Court noticed that when the deprivation of liberty lacks a basis in the domestic law, and thus is unlawful under paragraph 1, it is impossible to provide foreigners with the information about the legal

1935 See e.g. ECtHR, *M.A. v. Cyprus,* no. 41872/10 (2013), §229; ECtHR, *M.S. v. Slovakia and Ukraine,* no. 17189/11 (2020), §102.

1936 See e.g. ECtHR, *Nur and Others v. Ukraine,* no. 77647/11 (2020), §§137–138.

1937 ECtHR, *Čonka v. Belgium,* no. 51564/99 (2002), §50. See also ECtHR (GC), *Khlaifia and Others v. Italy,* no. 16483/12 (2016), §115; ECtHR, *M.S. v. Slovakia and Ukraine,*  no. 17189/11 (2020), §98.

1938 See e.g. ECtHR, *Rusu v. Austria,* no. 34082/02 (2008), §41; ECtHR (GC), *Khlaifia and Others v. Italy,* no. 16483/12 (2016), §132. See also ECtHR, *Rahimi v. Greece,* no. 8687/08 (2011), §§120–121. For more on paragraph 4, see these Chapter and Title, point 2.

1939 See e.g. ECtHR, *Suso Musa v. Malta,* no. 42337/12 (2013), §§115–116.

reasons for their detention in accordance with paragraph 2.**1940** Moreover, the court stressed that 'the absence of elaborate reasoning for an applicant's deprivation of liberty renders that measure incompatible with the requirement of lawfulness'.**1941**

Foreigners must learn about both the factual and the legal grounds for their detention. The information should be exact as to facts and correct as to laws. Specific factual information regarding the concerned foreigner's deprivation of liberty must be given. Brochures and information sheets that do not refer to the circumstances of the case may be found to be insufficient from the perspective of Article 5(2) of the ECHR.**1942** If the reasons for the deprivation of liberty change or new relevant facts occur, a detainee has a right to this information too.**1943**

Providing information at once in a language an asylum seeker understands may be difficult in practice. The presence of an interpreter during the apprehension in order to translate the reasons for detention is enough for the purposes of Article 5(2) of the ECHR.**1944** However, that is often not the case. The court reiterates that the required information must be conveyed promptly, but 'it need not be related in its entirety by the arresting officer at the very moment of the arrest'.**1945** Some delays are acceptable and the court assesses them on a case-by-case basis. For instance, in the case of *Saadi v. the United Kingdom,* a delay of seventy-six hours in communicating in understandable language the grounds for detention was found unacceptable under the requirements arising from Article 5(2) of the ECHR.**1946**

1943 ECtHR, *M.A. v. Cyprus,* no. 41872/10 (2013), §227.

Pursuant to the 2013 Reception Directive and Return Directive, detention shall be ordered in writing and the decision should state the reasons in fact and in law on which it is based.**1947** Enforcing the detention of asylum seekers or thirdcountry nationals staying illegally on the territory of a Member State without such a decision is precluded under the EU law.**1948** Foreigners detained pending asylum proceedings (including Dublin transferees) must also 'immediately be informed in writing, in a language which they understand or are reasonably supposed to understand, of the reasons for detention and the procedures laid down in national law for challenging the detention order, as well as of the possibility to request free legal assistance and representation'.**1949** The Return Directive does not provide for similar guarantees.

In the case of *Mahdi,* the referring court expressed doubt as to whether Article 15(2) of the Return Directive, requiring decisions on deprivation of liberty to be in writing, is applicable only to the first detention order or also to the extension of detention after the initial period of deprivation of liberty has expired. The CJ found that

(t)he requirement that a decision be adopted in writing must be understood as necessarily covering all decisions concerning extension of detention, given that (i) detention and extension of detention are similar in nature since both deprive the third-country national concerned of his liberty in order to prepare his return and/or carry out the removal process and (ii) in both cases the person concerned must be in a position to know the reasons for the decision taken concerning him.**1950**

Referring to its case-law on the general principle of effective judicial protection,**1951** the court recalled that it is essential to communicate the reasons for deprivation of liberty in order to guarantee a foreigner's right to defence 'in the best possible conditions' and to facilitate his decision on initiating appeal proceedings against the extension of detention. A full disclosure of the grounds for detention also allows the court to carry out a review of the legality of the decision in question.**1952** The CJ stressed that

1950 CJ, case C-146/14 PPU *Mahdi* (2014), para 44.

1948 CJ (GC), joint cases C-924/19 PPU and C-925/19 PPU *FMS and Others* (2020), paras 259, 274. See also CJ (GC), case C-808/18 *Commission v Hungary* (2020), paras 204–208.

1949 Article 9(4) of the 2013 Reception Directive and Article 28(4) of the Dublin III Regulation.

1951 E.g. CJ, case C-222/86 *Unectef v Heylens* (1987), para 15. For more on this principle, see Chapter 6.

1952 CJ, case C-146/14 PPU *Mahdi* (2014), para 45.

(a)ny other interpretation of Article 15(2) and (6) of Directive 2008/115 would mean that challenging the legality of a decision extending detention would be more difficult for a third-country national than challenging the legality of an initial detention decision, which would undermine the fundamental right to an effective remedy.**1953**

Accordingly, the court concluded that in the light of Articles 6 and 47 of the EU Charter, 'any decision adopted by a competent authority, on expiry of the maximum period allowed for the initial detention of a third-country national, on the further course to take concerning the detention must be in the form of a written measure that includes the reasons in fact and in law for that decision'.**1954** However, the court narrowed down this safeguard by stipulating that the same obligations are not applicable to the reviews at reasonable intervals of time referred to in the first sentence of Article 15(3) of the Return Directive.**1955**

Hitherto, the CJ has approached the states' obligations arising from Article 9(2) and (4) of the 2013 Reception Directive timidly,**1956** despite the fact that the latter provision may raise some concerns as to its compatibility with Article 5(2) of the ECHR (in particular, it is controversial that the information about the reasons for detention may be delivered in a language which the asylum seeker is 'reasonably supposed to understand').**1957** However, it is already clear from the jurisprudence of the ECtHR and the *Mahdi* case that both courts push states to provide asylum seekers with sufficient information about the factual and legal grounds on which their deprivation of liberty is based. Moreover, the *Mahdi* case shows that the Luxembourg Court—like the Strasbourg Court—sees the right to information about the reasons for detention in the context of its review. Only by knowing why he was detained can the foreigner make an informed decision on initiating review proceedings and defend his rights effectively.**1958**

1957 See Velluti (2014), 68; Markiewicz-Stanny (2015), 71–72; Peek and Tsourdi (2016), 1421.

1958 See also Vavuola (2014), claiming that the *Mahdi* ruling contributes to safeguarding the right to effective remedy for third-country nationals.

### **2. Right to Review**

Under Article 5(4) of the ECHR all detainees are entitled to take proceedings by which the lawfulness of their detention shall be decided speedily by a court and their release ordered if the detention is not lawful.**1959** Thus, the ECHR requires that detained asylum seekers have at their disposal an effective and speedy remedy under domestic law by which they can challenge the lawfulness of their deprivation of liberty. The lack of possibility for a detention to be reviewed from the perspective of its lawfulness constitutes a clear violation of Article 5(4) of the ECHR.**1960** Moreover, 'a detainee is entitled to apply to a "court" having jurisdiction to "speedily" decide whether or not their deprivation of liberty has become "unlawful" in the light of new factors which have emerged subsequently to the decision on their initial placement in custody'.**1961**

For a remedy to be in accordance with Article 5(4) of the ECHR, it must be effective,**1962** but it does not have to entail a suspensive effect.**1963** The existence of a remedy has to be 'sufficiently certain, not only in theory but also in practice, failing which it will lack the requisite accessibility and effectiveness'.**1964** A remedy is not effective when it offers no prospect of success.**1965** In regard to the requirement of accessibility, the ECtHR stressed that it 'implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy'.**1966** The lack of access to free legal aid in the context of detention proceedings, 'particularly where legal representation is required in the domestic context for the purposes of Article 5§4, may raise an issue as to the accessibility of such

1964 See e.g. ECtHR, *Abdolkhani and Karimnia v. Turkey,* no. 30471/08 (2009), §139; ECtHR (GC), *Khlaifia and Others v. Italy,* no. 16483/12 (2016), §130.

1965 See e.g. ECtHR, *Suso Musa v. Malta,* no. 42337/12 (2013), §58, ECtHR, *Abdi Mahamud v. Malta,* no. 56796/13 (2016), §109.

1959 Article 5(4) of the ECHR concerns reviewing only the lawfulness of detention. When there is no possibility to challenge under a domestic law the conditions in which the deprivation of liberty is effected, the ECtHR may find a violation of Article 13 of the ECHR, see e.g. ECtHR, *Mahmundi and Others v. Greece,* no. 14902/10 (2012), §76.

1966 See e.g. ECtHR, *Soldatenko v. Ukraine,* no. 2440/07 (2008), §125.

370 Chapter 5: Detention

a remedy'.**1967** Moreover, if detainees are not informed about the reasons for their confinement (in violation of Article 5(2) of the ECHR), their right to review is considered to be 'deprived of all substance'.**1968**

The review proceedings available to detainees must be speedy. The Strasbourg Court reiterates that 'since the liberty of the individual is at stake, the State must ensure that the proceedings are conducted as quickly as possible'.**1969** Detention of vulnerable foreigners, in particular minors, requires even greater expedition.**1970** Moreover, the remedy should be considered during the period of detention in question.**1971** The ECtHR applies very strict standards concerning the State's compliance with the speediness requirement.**1972** It is examined on a case-by-case basis, taking into account in particular 'the complexity of the case, any specificities of the domestic procedure and the applicant's behaviour in the course of the proceedings'.**1973** In the case of *D.B. v. Turkey,* the Strasbourg Court reproached national authorities for taking almost five months to consider the applicant's motion to annul the decision refusing his release. The court stressed that the case had not been complex: the detention in question had lacked a sufficient legal basis in domestic law. Despite this, the national court released the foreigner only because his refugee status had been recognized.**1974** In the case of *Muhammad Saqawat v. Belgium,* the court rejected the Government's arguments that the review proceedings lasted a long time due to the multiple levels of jurisdiction offered by Belgium law and the applicant's eagerness to appeal.**1975**

The ECtHR reiterates that long intervals in the context of automatic periodic review may give rise to a violation of Article 5(4) of the ECHR. In regard to immigration detention (both under the first and second limb of Article 5(1)(f)

1973 ECtHR (GC), *Khlaifia and Others v. Italy,* no. 16483/12 (2016), §131.

1967 See e.g. ECtHR, *Suso Musa v. Malta,* no. 42337/12 (2013), §61. See also ECtHR, *Abdolkhani and Karimnia v. Turkey,* no. 30471/08 (2009), §141; ECtHR, *H.A. and Others v. Greece,*  no. 19951/16 (2019), §212.

1970 ECtHR, *G.B. and Others v. Turkey,* no. 4633/15 (2019), §§166–167, 186.

of the ECHR) the court stressed that the intervals between reviews should be shorter than in case of other exceptions to the right to liberty, because the factors affecting the lawfulness of immigration detention, such as the progress of the asylum, extradition or deportation proceedings and the authorities' diligence in the conduct of such proceedings, may change over the course of time. However, taking into account the lack of a requirement for the necessity of detention under subparagraph (f), reviews do not have to be as frequent as in case of an arrest or detention under Article 5(1)(c) of the ECHR**1976**. The intervals applied in practice are assessed by the court on a case-by-case basis.**1977**

The reviewing court must determine the detention's 'compliance with the procedural and substantive conditions which are essential for the "lawfulness", in Convention terms'.**1978** The court stresses that the 'lawfulness' in paragraph 4 of Article 5 of the ECHR must be understood as having the same meaning as the same notion mentioned in paragraph 1 of this provision.**1979** However, it points out that

Article 5 § 4 does not guarantee a right to judicial review of such a scope as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decisionmaking authority. The review should, however, be wide enough to bear on those conditions which are essential for the "lawful" detention of a person according to Article 5 § 1 (…). The reviewing "court" must not have merely advisory functions but must have the competence to "decide" the "lawfulness" of the detention and to order release if the detention is unlawful.**1980**

As long as the lawfulness of detention can be examined, various forms of judicial review can be considered acceptable under paragraph 4.**1981** Moreover, Article 5(4) of the ECHR does not require that all arguments given by a detainee

1977 ECtHR, *Aboya Boa Jean v. Malta,* no. 62676/16 (2019), §§76–78.

1978 See e.g. ECtHR (GC), *Khlaifia and Others v. Italy,* no. 16483/12 (2016), §128.

1979 Ibid. Cf. ECtHR, *J.N. v. the United Kingdom,* no. 37289/12 (2016), §87; ECtHR, *Aboya Boa Jean v. Malta,* no. 62676/16 (2019), §80. For the requirement of lawfulness, see this Chapter, Title II.

1980 See e.g. ECtHR (GC), *Khlaifia and Others v. Italy,* no. 16483/12 (2016), §128.

1981 Ibid., §129.

1976 Article 5(1)(c) of the ECHR concerns 'the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so'.

be addressed by a reviewing court,**1982** but it must take into account those facts that are capable of putting in doubt the lawfulness of the deprivation of liberty.**1983**

The lawfulness of detention is also at the centre of the review proceedings guaranteed under the secondary EU law. Pursuant to the 2013 Reception Directive and the Return Directive, when the deprivation of liberty has been ordered by administrative authorities, the returnee concerned has a right to a speedy judicial review of the lawfulness of detention either *ex officio* or on request.**1984** National legislation that does not provide for such a review is precluded under the EU law as being in violation of the secondary law as well as the principle of effective judicial protection guaranteed under Article 47 of the EU Charter.**1985** Moreover, detention shall be reviewed at reasonable intervals of time.**1986** A speedy judicial review is also guaranteed under the 2013 Procedures Directive.**1987**

The scope of review has been interpreted by the CJ only in regard to the extension of detention pending return proceedings.**1988** However, taking into account the resemblance of the respective provisions, the findings of the court must be considered relevant to the interpretation of the 2013 Reception Directive.**1989**

In the cases of *Arslan* and *G. and R.* the Luxembourg Court stressed that the judicial authority deciding on the extension of the detention must conduct an assessment on a case-by-case basis of all factual and legal circumstances.**1990** This approach continued in the case of *Mahdi,* where the court analysed the

1989 See also Moreno-Lax and Guild (2015), 522.

1990 CJ, case C-534/11 *Arslan* (2013), paras 62–63; CJ, case C-383/13 PPU *G. and R* (2013), paras 44–45.

scope of 'supervision' referred to in the second sentence of Article 15(3) of the Return Directive. The nature of the examination to be conducted by the judicial authority deciding on the extension of the returnee's detention is not specified in this provision. However, it is clear that national courts must take into account the conditions laid down in Article 15(1) and (6) of the Return Directive, just as they should assess the reasonable prospect of removal pursuant to paragraph 4.**1991** Domestic judicial authorities 'must be able to rule on all relevant matters of fact and of law' in this regard and conduct an 'in-depth examination of the matters of fact specific to each individual case'. When this analysis leads to the conclusion that the detention is no longer justified, a national court

must be able to substitute its own decision for that of the administrative authority or, as the case may be, the judicial authority which ordered the initial detention and to take a decision on whether to order an alternative measure or the release of the third-country national concerned.**1992**

The judicial authority must take into account all the facts and evidence presented to it (both by the administrative authority and by the detainee) and 'any other element that is relevant for its decision should it so deem necessary'. Thus, 'the powers of the judicial authority in the context of an examination can under no circumstances be confined just to the matters adduced by the administrative authority concerned'.**1993**

The *Mahdi* case enhanced the scope of judicial review in the context of the prolongation of immigration detention, in particular in comparison with some national practices that limited courts' powers in this regard.**1994** On the one hand, surprisingly, the Luxembourg Court did not rely on Article 47 of the EU Charter in this regard. Despite that, as Ippolito noticed, the CJ's conclusions are 'seemingly drawn' from the logic of the EU Charter.**1995** On the other hand, unsurprisingly, the CJ did not refer to the ECtHR's case-law regarding Article 5(4) of the ECHR, under which the requirements regarding the scope and intensity of review are modest. In the *Mahdi* ruling, the Luxembourg Court pushes states to go beyond their obligations arising from the ECHR, in particular when it stresses that the judicial authority conducting the review must be able not only to order the detainee's release, but also to apply alternatives to

1993 CJ, case C-146/14 PPU *Mahdi* (2014), para 62.

1994 Basilien-Gainche (2014). See also Vavuola (2014).

1995 Ippolito (2015), 32.

1991 CJ, case C-146/14 PPU *Mahdi* (2014), paras 56–61.

1992 Ibid., para 62. See also CJ (GC), joint cases C-924/19 PPU and C-925/19 PPU *FMS and Others* (2020), para 293.

detention when necessary,**1996** and when it highlights that all the detainee's arguments must be taken into account, as well as any other information that the court considers relevant in the case.**1997**

### **VIII. Conclusions**

In this chapter, the requirements arising from the right to liberty and security as they are determined by the Strasbourg Court in its abundant case-law on immigration detention were examined and juxtaposed with the respective jurisprudence of the Luxembourg Court. The analysis was meant to enable ascertaining whether the right to liberty and security applied in the context of immigration detention is interpreted in a convergent manner by the two courts, providing a clear and indubitable standard that asylum seekers can rely on in domestic proceedings.

The right to liberty and security expressed in Article 6 of the EU Charter is supposed to have the same meaning and scope as the very same right arising from Article 5 of the ECHR. A congruous relation exists between Article 4 of the EU Charter and Article 3 of the ECHR regarding the prohibition of torture or inhuman or degrading treatment or punishment.**1998** Thus, it is not unreasonable to expect that the respective provisions of the ECHR and EU Charter will be—in the context of the detention of asylum seekers as in any other—interpreted coherently. However, it should not be overlooked that, pursuant to Article 52(3) of the EU Charter, the EU law may also provide for more extensive protection than the ECHR. And indeed, the analysis conducted in this chapter leads to a conclusion that either the jurisprudence of the ECtHR and the CJ on immigration detention is coherent or the Luxembourg Court pushes the Member States to provide for more extensive protection in accordance with the EU law than is required under the ECHR.

The two European asylum courts agree that immigration detention must be lawful, i.e. it has to be based in law of a sufficient quality and it cannot be arbitrary.**1999** The ECtHR and CJ coherently state that deprivation of liberty

1997 Cf. Mananashvili (2016), 740.

1998 See this Chapter, Title I, point1.

1999 See this Chapter, Title II.

1996 However, exceptionally, in some cases the ECtHR did reproach national courts for not considering alternatives to detention during review proceedings [see e.g. ECtHR, *A.B. and Others v. France,* no. 11593/12 (2016), §137]. The scarcity of such findings results from the court's approach to the applicability of the requirement of necessity in the context of immigration detention. For more see this Chapter, Title III.

justified by reasons like the ones provided for in points (a) and (b) of the first subparagraph of Article 8(3) of the 2013 Reception Directive is in compliance with the first limb of Article 5(1)(f) of the ECHR.**2000** They also consistently highlight—in regard to detention pending return proceedings and removal the requirements of due diligence and a realistic prospect of removal. They state in agreement that deprivation of liberty can continue despite return proceedings having been temporarily stayed, even when this suspension results from an application for international protection.**2001** Moreover, both courts push states to provide asylum seekers with sufficient information about the factual and legal grounds on which their detention was based.**2002**

The courts' approach to immigration detention differs in those cases where the Luxembourg Court decided that more extensive protection is provided under the EU law than pursuant to the ECHR. In the *Al Chodor and Others* case, the CJ found that the detention of Dublin transferees ordered on the basis of the settled case-law confirming a consistent administrative practice must be considered unlawful. Pursuant to the Dublin III Regulation, the reasons to believe that an asylum seeker may abscond must be based on objective criteria defined by law, i.e.—as concluded by the Luxembourg Court—by 'a binding provision of general application'. The CJ relied on the requirements arising from the ECtHR's case-law on the sufficient quality of law concerning detention, but decided to apply a more restrictive interpretation of the concept of 'law' than the Strasbourg Court occasionally did.**2003** Similarly, in the *Mahdi*  ruling, the CJ pushed states to go beyond their obligations arising from the ECHR. In particular, it stressed that the judicial authority conducting the review of a pre-removal detention must be able to apply alternative measures and that all the arguments made by a detainee must be taken into account.**2004** In the *FMS and Others* ruling, the Luxembourg Court expressed (indirectly) its agreement with the ECtHR's conclusion that a foreigner's possibility to leave a transit zone at his own will is a factor that affects the qualification of the measures applied to asylum seekers as a detention or not. However, it decided against the wording of the *Ilias and Ahmed v. Hungary* judgment—that such possibility is real only when a departure would be lawful and would not deprive the concerned foreigners of access to asylum proceedings.**2005**

The most noteworthy divergency between the jurisprudence of the two courts concerns the principle of proportionality and requirement of necessity.**2006** Under Article 5(1)(f) of the ECHR, the necessity test is not required and the application of the principle of proportionality is limited. That is a rule with some established exceptions. Pursuant to the EU law and the CJ's case-law, it is clear that the detention of asylum seekers—independently of the context (whether it is effected in connection with asylum, Dublin or return proceedings)—is subject to the principle of proportionality and the requirement of necessity. That is a rule with no exceptions. The standard applied by the Luxembourg Court is therefore clearly more protective than the one established by the ECtHR. The approach of the Strasbourg Court in this regard is rightly criticized, in particular in relation to the first limb of subparagraph (f). The respective jurisprudence of the ECtHR has evolved over the years; in particular, it now requires that for some vulnerable persons, their detention must be necessary. However, the progress is too slow and insufficient. There is a long way to go before the standards of the two European asylum courts unify in this regard, if they ever will.

The analysis conducted in this chapter also proved that there is the possibility of more inconsistency between the courts' approach to the detention of asylum seekers and returnees. Firstly, some provisions of the secondary EU law are questionable from the perspective of the requirements arising from Article 5 of the ECHR, but they have not been interpreted by the CJ yet.**2007** Secondly, the answers given by the Luxembourg Court in its judgments concerning immigration detention are sometimes incomprehensive and insufficient.**2008** References to the Strasbourg Court's jurisprudence, which could clarify the CJ's view on the matter, are not as frequent as one would expect taking into account the close relation between Article 6 of the EU Charter and Article 5 of the ECHR.**2009** In consequence, there is a risk that the secondary EU law examined by the Luxembourg Court may be interpreted in a manner that conflicts with the requirements arising from the ECHR. Thirdly, the jurisprudence of the Strasbourg Court on immigration detention is to a large extent so casuistic that it may be difficult to rely on it, both by the CJ and national authorities. Therefore, the unclear and too meagre reasoning in the rulings of the Luxembourg Court and the casuistic case-law of the ECtHR creates the opportunity for inconsistency between the courts' jurisprudence.

2006 See this Chapter, Title III.

2007 See e.g. Articles 9(4) and 11(6) of the 2013 Reception Directive.

2008 See this Chapter, Title IV, point 3.1, with regard to the *Mahdi* case; Title IV, point 3, with regard to the *Kadzoev* case; Title VI, with regard to cases *Bero and Bouzalmate* and*Pham.*

2009 In fact, the references to Article 6 of the EU Charter are also scarce.

It seems that the CJ ruling that aroused the greatest doubts in regard to its coherence with the ECtHR's jurisprudence was the *J.N.* case.**2010** In this case, the Luxembourg Court concluded that detention of asylum seekers under point (e) the first subparagraph of Article 8(3) of the 2013 Reception Directive (allowing for a deprivation of liberty for national security or public order reasons) is compatible with the requirements arising from Article 5(1)(f) of the ECHR. Meanwhile, the ECtHR excludes the possibility of detaining a person solely for public order or national security reasons under subparagraph (f). However, the Strasbourg Court allows for immigration detention when the security considerations exist but at the same time the proceedings concerning the foreigner's expulsion or extradition are in progress. The Luxembourg Court decided that the proceedings regarding *J.N.*'s return had been ongoing, even though he had applied for asylum and in those circumstances, pursuant to the national law, the return decision had lapsed. This artful manoeuvre enabled a reconciliation of the standards between the CJ and ECtHR. Nevertheless, the problem with the *J.N.* judgment lies less in what the court said and more in what it decided not to address. The answer given by the court did not refer to the facts of the case. Therefore, some doubts concerning the detention of asylum seekers for security reasons still persist, in particular in a situation when return proceedings were not concluded or even initiated before the asylum proceedings. It has been noticed that in this regard, point (e) of the first subparagraph of Article 8(3) of the 2013 Reception Directive may be interpreted inconsistently with the jurisprudence of the Strasbourg Court. The CJ did not address this problem in the *J.N.* case.

Importantly, while the standards on immigration detention arising from the ECtHR's and CJ's jurisprudence diverge to some extent, they all can be satisfied on a national level. The more protective rules arising from the CJ's case-law on the concept of 'law', the applicability of the necessity requirement and principle of proportionality, as well as the scope of the right to review,**2011** are not in contradiction with the ECHR. In fact, when under a domestic law in accordance with the EU law and the respective jurisprudence of the Luxembourg Court—a higher standard is provided for as regards immigration detention, the Strasbourg Court applies it under the lawfulness requirement as well.**2012**

Moreover, when the CJ's jurisprudence on immigration detention is incomprehensive or insufficient or does not address the crux of the problem,

2011 See this Chapter, Title II, III and VII, point 2.

2012 See this Chapter, Title II.

the ECHR and ECtHR's jurisprudence may sometimes dispel the doubts that have arisen. For instance, while in the case of *J.N.* the CJ decided not to address the issue of whether a detention of an asylum seeker for security reasons is permissible when the return order has not yet been issued, the analysis of the Strasbourg Court's case-law proves that such deprivation of liberty may be compatible with Article 5(1)(f) of the ECHR as long as it is ordered to prevent an unauthorised entry into the country.**2013** In the case of *Kadzoev,* the CJ did not consider a possible contradiction between the eighteen-month time-limit for a pre-removal deprivation of liberty and the states' obligations arising from the ECHR, in particular the requirement that the duration of immigration detention must be reasonable. However, the ECtHR's jurisprudence clearly shows that the length of deprivation of liberty must be reasonable irrespective of the existence or absence of time-limits under a domestic law.**2014**

Taking that into account, it must be concluded that even though the jurisprudence of the two European asylum courts on immigration detention is not convergent in its entirety, it is surely complementary. The standards established by the ECtHR and the CJ taken together may sufficiently protect asylum seekers and returnees against arbitrary, unjustified or protracted detention in unacceptable conditions without adequate procedural safeguards. However, the practice shows that states are not willing to comply with those standards, in particular in the face of large influxes of foreigners.**2015**

The UNHCR's postulate of 1986 that detention of asylum seekers and refugees 'should normally be avoided' is far from being realized.**2016** In 2014 the UNHCR boldly adopted a global strategy to support governments to end detention of asylum seekers and refugees. It established three main goals: ending detention of children, ensuring that alternatives to detention are available in law and practice, and guaranteeing that conditions of detention, where the detention is necessary and unavoidable, meet international standards.**2017** The practice of states that is reflected in the applications and preliminary references submitted to the ECtHR and the CJ respectively bluntly shows that there is still a long way to go before those goals can be achieved.

the UNHCR and Western governments over detention issues'.

2017 UNHCR (2014), 7.

# **Chapter 6 Remedies**

### **I. Introduction**

For asylum seekers, having access to effective remedies**2018** is of great importance. A decision that refuses entry to presumptive refugees by disregarding the principle of non-refoulement or that wrongfully rejects an application for international protection may lead to the asylum seeker's removal to a country where he fears persecution. A decision on an expulsion, extradition or transfer issued without a proper examination of the risk of treatment contrary to Article 3 of the ECHR and Article 4 of the EU Charter may put a returnee in a danger: he may be tortured or suffer an inhuman or degrading treatment or punishment after the return. The consequences of faulty decisions issued in asylum-related proceedings may be tremendous, if not life-threatening. As rightly stated by Hofmann and Löhr, the '(n)on-refoulement is only guaranteed if the person affected can appeal against unlawful decisions'.**2019** The domestic authorities are obviously not infallible**2020** and asylum seekers need a path to prove them wrong. Taking into account the rights that are at stake, it is not sufficient that asylum seekers have access to any remedy—it has to be an effective one.

In practice, some form of appeal procedure is provided in most of the European states as regards asylum, expulsion, extradition or transfer decisions. However, domestic appeal proceedings that asylum seekers are involved with are often flawed.**2021** To start with, the remedies are hardly accessible to asylum seekers, due to, *inter alia,* truncated time-limits for lodging an appeal**2022**

2019 Hofmann and Löhr (2011), 1105.

2018 Notion of 'remedies' is understood in this chapter in its procedural sense, i.e. as 'the processes by which arguable claims of human rights violations are heard and decided' [see Shelton (2005), 7], in particular by appeal or reviewing courts and administrative bodies.

2020 Ibid., referring to multiple accounts of successful appeals in refugee status determination procedures. See also UNHCR (2010), 88; EASO (2019), 63. See also Staffans (2010), 280, pointing out that due to the nature of asylum proceedings the frequency of appeals is high.

2021 See e.g. UNHCR (2010), 83–92.

2022 See e.g. ECRE (2016) 'Admissibility…', 22–23; ICommJ and ECRE (2018), 6–7; UNHCR(2018), Annex 2; ECRE (2020), 21. For more see Reneman (2013); EASO (2018) 'Asylum Procedures…', 151–154.

or the limited availability of legal aid**2023**. Even when a foreigner manages to submit an appeal, he may be removed before it is considered on the merits by a competent authority, because not all remedies entail a suspensive effect.**2024** The appeal bodies that are entrusted with the competence to deal with asylum seekers' matters sometimes lack sufficient independence and impartiality as well as expertise and experience.**2025** The scrutiny that they carry out may be restricted, by law or practice, only to points of law or to examination *ex tunc.***2026** In some instances, the respective authorities reviewing a decision are not allowed or willing to admit new evidence or gather information *proprio motu.***2027** In fact, on appeal, there is a tendency to scrutinize as little as possible.**2028** Such approach results, *inter alia,* from the standpoint that a first-instance authority is best suited to assess the evidence and applicant's credibility.**2029** Moreover, appeal asylum-related proceedings tend to be unduly lengthy,**2030** which leaves asylum seekers in a state of uncertainty about their legal position for an unnecessarily long time. Furthermore, procedural rules regarding remedies in asylum-related proceedings differ—sometimes significantly—between states, even amongst the Member States of the EU. In consequence, the scope of protection that an asylum seeker enjoys in this regard depends heavily on the law and practice of the state that issued a firstinstance decision on a refugee status determination or return.

The above-mentioned problems that asylum seekers struggle with in practice in the context of asylum-related appeal proceedings prove bluntly that cogent and coherent guidance is needed in this regard from the Strasbourg and Luxemburg Courts. In this chapter, the case-law of the two European asylum courts concerning the right to an effective remedy is scrutinized and juxtaposed (Title II-V). This examination is preceded by introductory remarks concerning the applicable legal framework (1) and by a detailed determination of the scope of the analysis conducted in this chapter (2).

2024 In particular in the admissibility and accelerated procedures, see e.g. ECRE (2016) 'Admissibility…', 23–24; ECRE (2017) 'Accelerated…', 12; ICommJ and ECRE (2018), 7–8; UNHCR (2018), Annex 2; EASO (2019), 163. See also ECRE (2020), 21, with regard to Dublin proceedings.

2025 See e.g. ICommJ and ECRE (2018), 4.

2026 See e.g. ECRE (2017) 'Accelerated…', 12; EASO (2018) 'Asylum Procedures…', 147.

2027 See e.g. EASO (2018) 'Evidence and Credibility…', 28–29.

2028 Spijkerboer (2009), 49.

2029 Reneman (2014) *EU Asylum Procedures (…),* 256, 259.

2030 ECRE (2016) 'Length…', 9–10. See also FRA (2010), 33.

### **1. Legal Framework**

The 1951 Refugee Convention does not specifically regulate procedural issues. The particularities of how refugees are to be identified were left to the discretion of the states. However, the general obligation to examine applications for asylum and, thus, to establish some procedure in this regard can be drawn from the text of the Convention.**2031**

International refugee law does not expressly provide for a right to an effective remedy for asylum seekers and refugees. Moreover, there is no agreement as to whether such a right may be inferred from the 1951 Refugee Convention, in particular from Articles 16**2032** and 33**2033**. Notwithstanding, when a refugee who is lawfully in the territory of a state is to be expelled, Article 32 para 2 does demand the right to appeal. However, this provision was not intended to give refugees the right to a full and *ex nunc* judicial review.**2034** Moreover, the right to a remedy in expulsion proceedings under the 1951 Refugee Convention can be excluded due to compelling reasons of national security.**2035**

The indispensability of remedies in asylum-related proceedings was promptly noticed by international and regional organizations. As early as in 1977, the UNHCR recommended that a right to appeal against a refusal of recognition as a refugee should be secured under national law. That remedy should entail a suspensive effect.**2036** In 1981, those conclusions were shared

2033 Battjes (2006), 323, emphasized that Article 33 did not require appeal proceedings. However, he also claimed that when a remedy is made available in a state, the procedure 'must give full effect' to the principle of non-refoulement. Most importantly, a right to remain in a state during appeal proceedings should be guaranteed then. Cf. Fischer-Lescano, Löhr and Tohidipur (2009), 285.

2034 Davy (2011), 1317–1318. See also Grahl-Madsen (1997), 133; Hathaway (2005), 671–672.

2031 See e.g. Boeles (1996), 297–299; Legomsky (2003), 654; Battjes (2006), 467; Goodwin-Gil and McAdam (2007), 530, 538; Vedsted-Hansen (2014), 439–441; Cantor (2015), 81; Cherubini (2015), 62–63. See also UNHCR, 'Handbook…', para 189. Cf. Hathaway (2005), 184–185.

2032 See e.g. Boeles (1996), 302–303; Elberling (2011), 944; Boeles et al. (2014), 277; Morgades-Gil (2017) 'The Right…', 258; Moreno-Lax (2017) *Accessing Asylum…,* 402. Cf. UNHCR, 'Handbook…' para 12 (ii), stating that Article 16 has 'no influence on the process of determination of refugee status'. See also Moffatt (2019), 419–420.

by the CoE Committee of Ministers.**2037** Several years later, the latter body specified that a rejected asylum seeker who is facing an expulsion to a country where there is a risk that he would be subjected to treatment contrary to Article 3 of the ECHR should have access to an effective remedy.**2038** This recommendation was based on the developing case-law of the ECtHR concerning Article 13 in conjunction with Article 3 of the ECHR.

Asylum seekers, like any other person, have a right to an effective remedy guaranteed under the ECHR. Pursuant to Article 13, '(e)veryone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity'. An arguable claim as regards other human rights enshrined in the Convention or protocols hitherto is thus required to activate the protection under Article 13.**2039** This obligation causes in particular that under the ECHR the right to an effective remedy is not guaranteed against any removal decision.**2040** An asylum seeker has to convincingly claim that a decision prompting his removal would expose him to a real risk of suffering treatment contrary to that treaty. Accordingly, asylum-seeking applicants most often invoke Article 13 of the ECHR in conjunction with Article 3.**2041** Occasionally, a breach of Article 2 of the ECHR or of Article 4 of the Protocol no. 4 is also referred to in this context.**2042**

Importantly, Article 3 of the ECHR (its procedural limb**2043**) also imposes some requirements on national asylum-related proceedings.**2044** In cases regarding the principle of non-refoulement, those requisites often overlap with

2037 Committee of Ministers of the CoE (1981), point 5.

2038 Committee of Ministers of the CoE (1998).

2039 Cf. Moreno-Lax (2017) *Accessing Asylum…,* 420, claiming that with the Grand Chamber's judgment in the case of *Tarakhel v. Switzerland,* no. 29217/12 (2014), 'the arguability threshold would seem to have disappeared'.

2040 De Weck (2017), 277.

2041 Costello and Hancox (2016), 433, claiming that 'the 'arguability' threshold in Article 3 cases will be met in most asylum cases (…)'. See also Clayton (2014), 196.

2042 See e.g. ECtHR (GC), *De Souza Ribeiro v. France,* no. 22689/07 (2012), §82; ECtHR, *Čonka v. Belgium,* no. 51564/99 (2002), §§81–85; ECtHR (GC), *N.D. and N.T. v. Spain,* nos. 8675/15 and 8697/15 (2020), §§240–244; ECtHR, *D. and Others v. Romania,* no. 75953/16 (2020), §§129–130.

2043 See e.g. ECtHR, *Slimani v. France,* no. 57671/00 (2004), §§29–32.

2044 See e.g. ECtHR, *Jabari v. Turkey,* no. 40035/98 (2000), §40; ECtHR, *Khaydarov v. Russia,*  no. 21055/09 (2010), §§112–115; ECtHR (GC), *Ilias and Ahmed v. Hungary,* no. 47287/15 (2019), §§163–164.

'manifestly unfounded' or 'clearly abusive', the applicant should have a right to challenge this decision before he is forcibly removed [UNHCR, Executive Committee (1983), para. e (iii)].

the ones arising from Article 13 of the ECHR.**2045** In consequence, the court does not always find it necessary to consider the violation of both provisions and decides only on the breach of Article 3.**2046** Conversely, sometimes it decides that the complaints regarding the remedies should be analysed only in relation to Article 13.**2047** Moreover, regrettably, in some cases the court clearly implied that the procedural limb of Article 3 of the ECHR had been violated in regard to appeal proceedings, but subsequently argued that there was no breach of the right to an effective remedy.**2048**

Effective remedies are also guaranteed under EU law.**2049** Pursuant to Article 47(1) of the EU Charter, '(e)veryone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article'. In fact, the right to effective judicial protection was considered a general principle of EU law by the CJ long before the adoption of the EU Charter,**2050** and Article 47 only 'constitutes a reaffirmation' of this principle.**2051** The Luxembourg Court reiterates that

in the absence of EU rules on the matter, it is for the national legal order of each Member State to establish procedural rules for actions intended to safeguard the rights of individuals, in accordance with the principle of procedural autonomy, on condition, however, that those rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness).**2052**

2046 See e.g. ECtHR, *Klein v. Russia,* no. 24268/08 (2010), §65; ECtHR, *Charahili v. Turkey,*  no. 46605/07 (2010), §§79–80; ECtHR, *Khaydarov v. Russia,* no. 21055/09 (2010), §156; ECtHR, *Abdulkhakov v. Russia,* no. 14743/11 (2012), §158; ECtHR, *M.D. and M.A. v. Belgium,* no. 58689/12 (2016), §70; ECtHR (GC), *Ilias and Ahmed v. Hungary,* no. 47287/15 (2019), §179; ECtHR, *M.S. v. Slovakia and Ukraine,* no. 17189/11 (2020), §131.

2050 See e.g. CJ, case C-222/84 *Johnston* (1986), paras 18–19.

2045 De Weck (2017), 295, even claimed that Article 3 of the ECHR 'contains an implicit right to an effective remedy against refoulement decisions.' See also, in general, Barkhuysen and van Emmerik (2018), 1048.

2047 See e.g. ECtHR, *Hilal v. the United Kingdom,* no. 45276/99 (2001), §69.

Article 47(1) of the EU Charter is also undoubtedly based on Article 13 of the ECHR. However, it is not a right which corresponds to a right guaranteed by the ECHR within the meaning of Article 52(3) of the EU Charter. The right to an effective remedy enshrined in Article 47 is not dependent on the existence of 'an arguable complaint'; it is applicable to all cases that are within the scope of EU law, including asylum cases.**2053**

The ECHR and the EU Charter provide for other procedural guarantees, also. Firstly, in Article 1 of the Protocol no. 7 'procedural safeguards relating to expulsion of aliens' are determined. However, this provision is applicable only to 'an alien lawfully resident in the territory of a State', so usually not to asylum seekers.**2054** Secondly, under Article 6 of the ECHR the right to a fair trial is safeguarded. Nevertheless, the ECtHR—in line with the case-law of the ECommHR**2055**—refuses to apply it in relation to asylum cases, as 'decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant's civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 §1'.**2056** Nonetheless, the protection offered by Article 13 of the ECHR has been extended by the ECtHR over time so that nowadays it includes some aspects of the right to a fair trial.**2057** Moreover, the latter right is also secured under Article 47(2) of the EU Charter.

2053 'Explanations Relating to the Charter of Fundamental Rights' (2007), 29, 33–34; CJ (GC), case C-562/13 *Abdida* (2014), para 51. See also opinion of AG Cruz Villalón in case C-69/10 *SambaDiouf,* delivered on 1 March 2011, EU:C:2011:102, paras 38–39, claiming that the right to effective judicial protection under Article 47 of the EU Charter 'acquired a separate identity and substance under that article which are not the mere sum of the provisions of Articles 6 and 13 of the ECHR'. Cf. CJ, case C-348/16 *Sacko*  (2017), para 39.

2057 See e.g. Morgades-Gil (2017) 'The Right…', 259.

This provision clearly corresponds to Article 6(1) of the ECHR, although it is not limited to civil and criminal proceedings.**2058** Thus, it is recognized that by the means of Article 47(2) of the EU Charter the requirements arising from Article 6 of the ECHR as defined in the respective case-law of the ECtHR are applicable to asylum-related proceedings conducted in the Member States of the EU.**2059**

The right to an effective remedy is strengthened by specific provisions of the secondary asylum law, notably by Article 46 of the 2013 Procedures Directive,**2060** Article 27 of the Dublin III Regulation**2061** and Article 13 of the Return Directive. All those acts explicitly refer to the obligation of the Member States to provide for an effective remedy in the respective asylum-related proceedings, but the scope of this right differs between asylum, Dublin and return procedures. Moreover, a lot of discretion is still left to the Member States in this regard, hampering a real harmonization of the EU law.**2062** Thus, in practice and law, the procedural safeguards as regards remedies differ not only between asylum-related proceedings, but also between the Member States.

There is 'much room for insecurity about the real level of procedural guarantees that is required'**2063** under the secondary asylum law. The EU Charter and the ECHR should provide guidance in this regard, at least in relation to the right to an effective remedy, but it cannot be overlooked that the respective provisions are formulated in a very broad and vague manner. Article 13 of the ECHR was even considered one of the most obscure provisions of the Convention.**2064** In those circumstances it is not surprising that national courts

2063 Boeles et al. (2014), 411.

2064 See partially dissenting opinion of judges Matscher and Pinheiro Farinha in ECtHR (Plenary), *Malone v. the United Kingdom,* no. 8691/79 (1984), claiming that 'Article 13 (art. 13) constitutes one of the most obscure clauses in the Convention and that its application raises extremely difficult and complicated problems of interpretation'.

and tribunals often refer preliminary questions regarding remedies in asylum-related proceedings to the CJ and asylum seekers constantly complain before the ECtHR that their right to an effective remedy has been violated.**2065**

#### **2. Scope of Analysis**

In this chapter, the right to an effective remedy enshrined in Article 13 (in particular in conjunction with Article 3) of the ECHR and Article 47(1) of the EU Charter, is put in focus. Accordingly, the analysis below does not encompass Article 1 of the Protocol no. 7, as this provision is usually not applicable to asylum seekers. Moreover, due to the above-mentioned constant and clear approach of the Strasbourg Court as to the applicability of Article 6 of the ECHR to asylum cases,**2066** the right to a fair trial enshrined in the ECHR and the EU Charter is examined only incidentally in this chapter.

In general, the case-law of the ECtHR and the CJ concerning Article 13 of the ECHR and Article 47(1) of the EU Charter, respectively, is abundant. As regards remedies in asylum-related proceedings, the jurisprudence of the Strasbourg Court has been particularly well established, under both Article 13**2067** and the procedural limb of Article 3 of the ECHR. Within the CJ's asylum case-law, Article 47 is the provision of the EU Charter that is most often referred to by national courts and by the Luxembourg Court itself.**2068** The latter court is increasingly giving preliminary rulings that concern remedies available in asylum, Dublin and return proceedings.

The jurisprudence of the Strasbourg Court regarding asylum seekers' right to an effective remedy serves as the starting point for the analysis conducted in this chapter. The ECtHR reiterates that the scope of the states' obligations under Article 13 of the ECHR is dependent on the nature of an applicant's complaint.**2069** In the refoulement context, the Strasbourg Court maintains that Article 13 requires, first, an independent and rigorous scrutiny

2065 For more see Chapter 1, Title V, point1.2.

2066 For more see these Chapter and Title, point1.

2067 Cf. Dembour (2015), 426–427, emphasizing that the ECtHR only occasionally finds breaches of Article 13 of the ECHR in return cases and its case-law in this regard 'remains weak'.

2068 For more see Chapter 1, Title V, point 1.2. Cf. Thym (2019), 192, claiming that the CJ 'often treads carefully when pronouncing itself on procedural aspects' and, in consequence, a 'comparatively little 'demand' among domestic courts in the form of preliminary references on procedural issues' was found. See also Costello and Hancox (2016), 385.

2069 See e.g. ECtHR (GC), *M.S.S. v. Belgium and Greece,* no. 30696/09 (2011), §288; ECtHR (GC), *De Souza Ribeiro v. France,* no. 22689/07 (2012), §78; ECtHR (GC), *Hirsi Jamaa and Others v. Italy,* no. 27765/09 (2012), §197; ECtHR, *S.K. v. Russia,* no. 52722/15 (2017), §74.

of a claim that there exist substantial grounds for fearing a real risk of suffering a treatment contrary to Article 3 of the ECHR, and, second, an automatic suspensive effect.**2070** More recently, the ECtHR added that the right to an effective remedy entails also 'a reasonable promptness' of appeal proceedings (or a 'particularly prompt response').**2071**

In this chapter, the three requirements arising from the right to an effective remedy as they are established in the Strasbourg Court's asylum case-law are examined and juxtaposed with the respective jurisprudence of the CJ. The analysis starts with the newest criterion, 'a prompt response' (Title II), and continues with the more developed requirements of 'an independent and rigorous scrutiny' (Title III) and 'a suspensive effect' (Title IV). The aim of this chapter is to determine whether the right to an effective remedy in asylum-related proceedings is interpreted in a convergent manner by the two courts, providing a clear and indubitable standard that asylum seekers can rely on (Title V).

### **II. Prompt Response**

Pursuant to Article 6(1) of the ECHR, everyone is entitled to a fair and public hearing within a reasonable time. This guarantee applies until the final conclusion of the proceedings, i.e. also during the appeal procedure.**2072** However, as mentioned before, the ECtHR refuses to apply this provision in relation to asylum cases because they 'do not concern the determination of an applicant's civil rights or obligations or of a criminal charge against him' as specified in Article 6.**2073** That does not mean, though, that unduly lengthy asylumrelated proceedings are acceptable under the ECHR. The Strasbourg Court approaches this problem in its case-law developed under Articles 3 and 13 of the Convention.**2074**

2070 See e.g. ECtHR, *Jabari v. Turkey,* no. 40035/98 (2000), §50; ECtHR, *Gebremedhin [Gaberamadhien] v. France,* no. 25389/05 (2007), §58; ECtHR, *Abdolkhani and Karimnia v. Turkey,* no. 30471/08 (2009), §108; ECtHR (GC), *Hirsi Jamaa and Others v. Italy,*  no. 27765/09 (2012), §198; ECtHR, *A.M. v. the Netherlands,* no. 29094/09 (2016), §62.

2071 See e.g. ECtHR (GC), *M.S.S. v. Belgium and Greece,* no. 30696/09 (2011), §293; ECtHR, *Mohammed v. Austria,* no. 2283/12 (2013), §§71–72; ECtHR, *M.A. v. Cyprus,* no. 41872/10 (2013), §133; ECtHR, *S.K. v. Russia,* no. 52722/15 (2017), §74–75; ECtHR, *Kebe and Others v. Ukraine,* no. 12552/12 (2017), §101.

2072 See e.g. Harris et al. (2018), 440.

2073 ECtHR (GC), *Maaouia v. France,* no. 39652/98 (2000), §40. See also this Chapter, Title I, point1.

2074 See also, in the context of the investigations into alleged killings or ill-treatment, ECtHR, *Aksoy v. Turkey,* no. 21987/93 (1996), §98, where the court stated that the requirement of promptness 'is implicit in the notion of an "effective remedy" under Article 13'.

In the refoulement context, the ECtHR emphasizes that the right to an effective remedy entails—in addition to the well-established requirements of independent and rigorous scrutiny as well as a suspensive effect—'a reasonable promptness' or a 'particularly prompt response'.**2075** The court highlights that 'particular attention should be paid to the speediness of the remedial action itself, since it is not inconceivable that the adequate nature of the remedy can be undermined by its excessive duration'.**2076**

The Greek cases are the most illustrative in this regard. In the case of *M.S.S. v. Belgium and Greece,* the Strasbourg Court found that the remedy against the negative asylum decision could not be considered effective for the purposes of Article 13 of the ECHR, *inter alia* because the appeal proceedings before the Supreme Administrative Court had lasted on average five and a half years. Also, the procedure concerning the suspension of the expulsion order was found to be excessively long (up to 4 years).**2077** The court emphasized that it could not agree with the Greek Government

that the length of the proceedings before the Supreme Administrative Court is irrelevant for the purposes of Article 13. The Court has already stressed the importance of swift action in cases concerning ill-treatment by State agents (…). In addition, it considers that such swift action is all the more necessary where, as in the present case, the person concerned has lodged a complaint under Article 3 in the event of his deportation, has no procedural guarantee that the merits of his complaint will be given serious consideration at first instance, statistically has virtually no chance of being offered any form of protection and lives in a state of precariousness that the Court has found to be contrary to Article 3.**2078**

The ECtHR clarified later that the excessive delays in examining requests and appeals are particularly unreasonable when the respective proceedings concern a stay of a removal. A request for interim protection is intended to be considered speedily. Meanwhile, in the case of *Ahmade v. Greece* those proceedings

2077 ECtHR (GC), *M.S.S. v. Belgium and Greece,* no. 30696/09 (2011), §§190, 320.

2078 Ibid., §320.

2075 See e.g. ECtHR (GC), *M.S.S. v. Belgium and Greece,* no. 30696/09 (2011), §293; ECtHR (GC), *De Souza Ribeiro v. France,* no. 22689/07 (2012), §82; ECtHR, *S.K. v. Russia,* no. 52722/15 (2017), §74–75; ECtHR, *Kebe and Others v. Ukraine,* no. 12552/12 (2017), §101; ECtHR, *Allanazarova v. Russia,* no. 46721/15 (2017), §96.

2076 See e.g. ECtHR (GC), *M.S.S. v. Belgium and Greece,* no. 30696/09 (2011), §292; ECtHR (GC), *De Souza Ribeiro v. France,* no. 22689/07 (2012), §81. See also concurring opinion of judge Pinto de Albuquerque in ECtHR (GC), *Hirsi Jamaa and Others v. Italy,* no. 27765/09 (2012), where the features of refugee-status determination procedure that are indispensable were indicated, including the 'full and speedy judicial review of both the factual and legal grounds of the first-instance decision'.