Transcript Slide 1

EU ASYLUM ACQUE:
Detention of asylum-seekers
.
Andrei Arjupin
Daugavpils 28 June 2012
UNHCR Regional Office for the Baltic and Nordic Countries
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Chronology: EU asylum legislation
• 1999: legal competence for asylum moved
to EU
• 2000-5: ‘first phase’ instruments enacted,
aiming at harmonization of national law
• 2005-8: implementation – & evaluation
• 2008-11: Recast proposals under
negotiation for most Directives/Regulation
• 2012: deadline for establishing the
Common European Asylum System..?
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EU Asylum Law
EU Charter of Fundamental Rights
Article 6: Right to liberty and security
Article 18: Right to asylum in due
respect of the rule of the 1951 Convention
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Reception Conditions:
Directive 2003/9/EC
• Aim: lay down common minimum standards for
reception of asylum- seekers, ensuring dignified
standard of living throughout the EU
Art 2(k) – defines detention as “confinement of an asylum
seeker by a member state within a particular place, where
asylum seeker is deprived of his/her freedom of movement.
Recital 10 & 13 – reception of asylum applicants in
detention should be specifically designed to meet their
needs
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Amended Reception Conditions Recast
(June 2011)
Proposes closer regulation of detention (new Art 8):
– Requires to provide justification:
(not merely for seeking asylum; subject to a
necessity test and A2D);
– 4 grounds for detention defined:
- determine/verify identity/citizenship;
- determine elements of asylum claim
(only in preliminary interview);
- to decide on right to enter;
- to protect national security/public
order.
Art 8(3)
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Amended Reception Directive Recast 2
•
Conditions of detention – recast proposes ‘specialised detention facilities’ (i.e. not
criminal prisons); “preferably” separately from irregular migrants; for “shortest possible
period” and “delays in procedures shall not justify continuation of detention”
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Reception Conditions to apply in detention; in Dublin cases
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Limits on detention of vulnerable groups: only if it does not deteriorate the state of health
- (?) a mechanism to identify special needs (Art 21-22)
- (?) prohibition of detention of UAMs (Art 11 – “in particular circumstances”)
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Judicial review of detention – at reasonable intervals; free legal assistance, Art 9(5)
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A2D in the national law, Art 8(4)
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Dublin II Regulation EC 343/2003
applied with Eurodac Regulation EC 2725/2000
• Binds all MS plus NO, CH, IS
• Aimed at determining the state
responsible for determining an asylum
claim
• Application shall be examined ‘by a single
Member State’ (Art 3(1))
• Eurodac: fingerprint database for asylumseekers and irregularly entering/present
people
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Dublin II Recast Proposal (2008):
EC proposes:
• Wider ‘discretionary clause’ – allowing MS to take
responsibility in more cases
• More entitlements for unaccompanied/ separated
children – no detention of UAMs - Art 27(11)!
• Limits on detention under Dublin (necessity test?, A2D,
only after notification about transfer, “shortest possible period”)
• Risk of absconding – criteria to be defined by law!
• Increased procedural safeguards, including practical
means to appeal against transfers, linguistic/free legal assistance
• NB! Art 27 – no provisions on detention conditions and guarantees
for detained unlike in the amended Recast RCD/ Returns Directive
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ASYLUM PROCEDURES
DIRECTIVE, 2005/85/EC
• Aim: to establish minimum standards for procedures for
determining applications for refugee status
Provides a set of minimum safeguards, including:
- prohibition against detention of asylum-seekers (Art 18), unless
justified + speedy judicial review;
- legal advisor or counsellor has access to closed areas, such as
detention facilities & transit zones (Article 16(2));
- UNHCR allowed to access to asylum-seekers, including those in
detention & in airport or port transit zones (Article 21(1));
Also, confirms the right to an ‘effective remedy’ against negative first
instance decisions.
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Asylum Procedures Directive
Recast (Dec 09- June 11)
EC proposed:
• Definition of PSN - Art 2(d)
• New provisions enhancing access –
including obligation to ‘ensure an effective opportunity’
for person ‘wishing’ to lodge an application – Art 6(2)
• Information/interpretation for a/s at BCPs/
transit/ DCs - Art 7(1) and 7(2)
• Mandatory check on Non-Refoulement in case
of extradition to a third country - Art 8(3)
• Duty to cooperate – Art 12 (1)
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Asylum Procedures Recast (2)
• Effective remedies – in principle, a
suspensive effect must apply to appeals –
OR at least a right to request suspensive
effect:
(based on ECtHR case-law in M.S.S. v
Belgium and Greece, App. 30696/09, 21
Jan 2011, para 385 and further; also
Gebremedhin v France, App. 25389/05, 26
Apr 2007)
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UNHCR practical recommendations for
alternatives to detention
• UNHCR Revised Guidelines on Applicable Criteria and
Standards relating to the Detention of Asylum- Seekers,
26 February 1999.
• Provide practical guidance on the interpretation and
application of Art. 31(1), specify exceptions to the
general rule that asylum-seekers should not be
detained, establish procedural safeguards, and suggest
alternatives to detention;
• The detention of asylum-seekers, in the view of
UNHCR, is inherently undesirable.
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Practical recommendations for
alternatives to detention
• In accordance with the international legal framework and the EU
Aquis, the rule is that asylum-seekers and refugees should enjoy
the right to freedom of movement.
• If for any reason MS/s need to ensure the presence of asylum
applicants in certain specific places, this can be done through:
• Reporting mechanisms
• Sureties by 3rd parties (guarantors) including by associations/
organisations
• Release to case-worker or coach (social workers to follow the
case)
• Bail (practically used in UK, other countries has it also)
• Surrender of passport
• Electronic monitoring (with the proviso that electronic monitoring
be conducted in a manner in full compliance with fundamental
human rights, DNK/PTG/UK)
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If not feasible then,
Procedural Safeguards to be respected
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Anyone detained must be informed immediately in a language that s/he
understands of the reasons for her/his detention and on how to appeal.
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The person detained should be entitled to a speedy judicial review by an
independent authority so that a court can decide without delay on the lawfulness of
the detention (also children accompanying the detained person – Popov v France, 19
Jan 2012).
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Should the arrest prove unlawful, the detained person has a right to compensation.
(Lokpo and Toure v. Hungary, App. 10816/10, 20.Sep 2011)
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The grounds for detention must be established by law (Saadi v. the UK, ECtHR,
App. No. 13229/03, 29 Jan. 2008).
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The shortest possible time limit for detention must be established (Nasrulloyev v
Russia, App.656/06, 24 Apr 2008; Ismoilov v Russia, 2947/06, 11 Dec 2008).
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Asylum-seekers should not be detained in the same premises as criminals.
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Procedural safeguards (cont):
• UNHCR and NGOs must have accelerated access to the person in
custody.
• Detention should be regularly reviewed by a court.
• Detention must not be an obstacle to asylum (I.M. v France, App
No. 9152/09, 02 Feb 2012 ).
• Applications for protection made by asylum-seekers in detention
should be prioritized.
• Conditions of detention must be in accordance with the full respect
of the human rights of the detained person.
• Persons with specific needs and children should not be detained
(Rahimi v. Greece, ECtHR, App. No. 8687/08, 5 April 2011; Kanagaratnam v
Belgium, App. 15297/09, 13 Dec 2011; Popov v France, App. 39472/07, 19 Jan
2012).
• Children should not be separated from their parents or guardians.
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Exceptional grounds for detention
under UNHCR 1999 Guidelines:
In case of necessity, detention can be used:
1. In situations when identity is undetermined or in dispute;
2. For preliminary interview - to determine the elements of
asylum claim;
3. Where there is an intention to mislead the authorities;
4. Where there is evidence to show that the asylum-seeker
has criminal antecedents and/or affiliations likely to pose
a risk to public order/ national security.
Shall be prescribed by national law, which should be in
conformity with general norms and principles of IHRL,
A2D considered first
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