Detention of asylum seekers

Detention is defined in the recast Reception Conditions Directive (binding on all countries except Ireland, the UK, Switzerland, Serbia and Turkey) as the confinement of an asylum seeker within a particular place, where the applicant is deprived of his or her freedom of movement. Beyond the Directive, the human right to liberty sets out applicable standards in relation to the lawfulness of detention during an asylum procedure.

The information in this section is up-to-date as of the end of 2016

 

Detention in numbers

Figures on the detention of asylum seekers across selected European countries in 2016 show vast differences in the total number of asylum seekers placed in detention:

It should be noted that the number of asylum seekers subject to detention may include both persons who applied for asylum from detention and persons who were placed in detention after lodging an asylum claim. In Greece, for example, out of a total 4,072 asylum seekers detained in the course of last year, only 2,829 applied for asylum whilst in detention. A significant number of asylum seekers were transferred from Reception and Identification Centres (RIC) on the islands to pre-removal detention centres in the mainland, under the implementation of the EU-Turkey statement.

The number of asylum-seeking children detained is not available for all countries, yet seemed to be relatively low in the UK (71 out of 13,230 asylum seekers detained) in 2016, whereas no asylum seekers belonging to vulnerable groups were detained in Croatia. Conversely, in Poland, 292 asylum-seeking children were detained, making up nearly 50% of the total population of detained asylum seekers. Sweden detained a total 108 children last year, including but not limited to asylum seekers.

 

Numbers

Legal framework of detention

Article 8 of the recast Reception Conditions Directive sets out the grounds for detention of an asylum seeker. Firstly, the provision prohibits Member States from detaining asylum seekers for the sole reason that they have applied for asylum. The article also obliges Member States to verify whether less coercive alternative measures cannot be effectively applied and states that detention can only be ordered when it proves necessary and on the basis of an individual assessment of each case.

Grounds for detention

Article 8(3) recast Reception Conditions Directive

Under Article 8(3) of the recast Reception Conditions Directive, an applicant can only be detained for six reasons:

  • In order to determine or verify his or her identity or nationality;

  • In order to determine those elements on which the application is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding;

  • In order to decide, in the context of a procedure, on the applicant’s right to enter the territory;

  • When he or she is detained subject to a return procedure…when there are reasonable grounds to believe that he or she is making the application for international protection in order to delay or frustrate the enforcement of the return decision;

  • When protection of national security or public order so requires;

  • In accordance with the Dublin III Regulation, which permits detention in order to secure transfer procedures where there is a serious risk of absconding.

Article 8 of the Directive requires Member States to lay down the grounds for detention in their national law, as well as the possible alternatives for detention. The following grounds are applicable in AIDA countries:

Alternatives to detention

Note that the Directive does not bind the United Kingdom, Ireland, Switzerland, Serbia and Turkey.

Article 8(4) recast Reception Conditions Directive

The alternatives to detention mentioned in Article 8(4) of the recast Reception Conditions Directive are: regular reporting to the authorities, the deposit of a financial guarantee, and an obligation to stay at an assigned place.

Duration of detention

Article 9(1) recast Reception Conditions Directive

Article 9(1) of the recast Reception Conditions Directive requires detention to be as "short as possible", though no specific time limit is imposed. In practice, AIDA countries have introduced different maximum time limits for detaining asylum seekers, while some use the maximum time limit of 18 months set out in the Return Directive:

Detention of vulnerable groups

Article 11 recast Reception Conditions Directive

Article 11 of the recast Reception Conditions Directive requires Member States to offer adequate support to detained vulnerable persons and to regularly monitor their situation. The article also states that minors are only to be detained as a measure of last resort and for the shortest period of time. Member States can only detain unaccompanied minors in exceptional circumstances.

Not all Member States (frequently) use detention for vulnerable applicants. No vulnerable groups were detained in 2016 in Croatia and detention in general is rarely used in Ireland. In Malta vulnerable applicants are not detained, except when they enter by plane, in which case the vulnerability assessment in the Initial Reception Centre (IRC) is skipped and asylum seekers are detained immediately. In Serbia, there are legal provisions on the detention of vulnerable applicants, but this never happens in practice.

  • Children and unaccompanied children

- No detention: Detention of both children in families and unaccompanied children is forbidden in Cyprus, Italy, the Netherlands and Sweden. In Belgium, unaccompanied children are never detained and there is no more detention of families with children since 2009, but the State Secretary intends to reinstate this. In Sweden children can be detained when alternatives to detention have failed, which happens in practice, although not very often. Detention of children in the Netherlands is only possible when there are doubts about the age and when they are crime.

- No detention for unaccompanied children: In Bulgaria, Hungary and Poland only detention of unaccompanied children is prohibited by law. However both in Bulgaria and Hungary this happens in practice with up to 1,821 unaccompanied children in detention in Bulgaria in 2016. Detention of families is allowed for up to 3 months in Bulgaria. Unaccompanied minors in Poland are only detained when there are doubts about their age.

- Detention for both: In Greece, both unaccompanied minors and families with children are detained in practice. Unaccompanied children are usually detained in police custody.

- Other practices: In Germany, detention of both accompanied and unaccompanied children seldom occurs. In Austria, children under 14 are never placed in detention. Children over 14 are in principle first subject to alternatives of detention. In Switzerland detention of children varies between cantons

  • Other vulnerable groups

In Cyprus, other vulnerable groups are subject to detention. Detention of other vulnerable groups in Germany is dependent on the State, some have regulations in place but others do not. In Spain there have been reports of vulnerable applicants being detained, however these are released from detention as soon as vulnerabilities are detected. Victims of trafficking in France often fear declaring their intention to apply for asylum in detention. In Greece victims of torture are kept in detention even after the detection of vulnerability. Other categories of vulnerable groups in Hungary, Sweden and Poland are not excluded from detention. Vulnerable groups are detained in Italy except when their health does not allow for detention. In the Netherlands there is no policy with regards to other categories of vulnerable persons. In the UK, all vulnerable groups are detained. A new guidance on detention of pregnant women was issued in 2016.

Legal framework

Procedural safeguards

Article 9 of the recast Reception Conditions Directive contains guarantees for detained applicants.

Judicial review of the detention order

Article 9(3)-(6) recast Reception Conditions Directive

Article 9(3)-(6) of the recast Reception Conditions Directive lays down rules on judicial review of the detention order. The provision requires a speedy judicial review of the detention decision and the review should conducted at reasonable intervals of time.

BelgiumCyprusCroatiaPoland, the United KingdomSerbia and Turkey do not provide ex officio judicial review of the lawfulness of detention. The remaining AIDA countries have different intervals in which the detention order is reviewed as shown in the table below:

Legal assistance for review of detention

Article 9(7) recast Reception Conditions Directive

Article 9(7) of the recast Reception Conditions Directive obliges Member States to provide access to free legal assistance for review of detention. This at least includes the preparation of the required procedural documents and participation in the hearing before the judicial authorities on behalf of the applicant.

Apart from Germany free legal assistance for review of detention is provided for in the law of all AIDA countries. It is however not applied in practice in BulgariaCyprusGreece, PolandHungary, Spain, the United Kingdom and Turkey. In Cyprus free legal assistance is not provided for detainees who fall under the category of “prohibited immigrant”.

Procedural safeguards

Detention conditions

Article 10 of the recast Reception Conditions Directive regulates the conditions of detention of asylum seekers.

Detention in prisons

Article 10(1) recast Reception Conditions Directive

Article 10(1) provides that Member States can resort to detention of applicants in prisons where no specialised detention facility is available and only on the condition that applicants shall be kept separately from ordinary prisoners.

Sweden, Switzerland, Serbia, the United Kingdom and Ireland detain people in prisons. In Malta this is also allowed by law but not used in practice.                              

Number, capacity and location of pre-removal detention centres

Most AIDA countries detain asylum seekers in dedicated detention centres, which are also used for the purpose of removal of irregular migrants. The following table contains information on the number and respective capacities of pre-removal detention centres across different countries:


Access to detention facilities

Article 10(3)-(4) recast Reception Conditions Directive

Article 10(3) and (4) of the recast Reception Conditions Directive requires Member States to allow access to UNHCR, family members, legal representatives and NGOs.

Detention conditions

About AIDA

The Asylum Information Database (AIDA) is a database managed by the European Council on Refugees and Exiles (ECRE), containing information on asylum procedures, reception conditions, detenti