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.
Residence restrictions: Residence restrictions are very often applied as an alternative to detention, although Austria, Belgium, Bulgaria and Sweden do not provide for this.
Reporting duty: The most common alternative in legal frameworks is a reporting duty, with only Belgium and Serbia not providing for this.
Surrendering documents: An alternative not mentioned in Article 8, surrendering documents, is available everywhere but in Belgium, Bulgaria, Cyprus, Hungary, Ireland, the Netherlands, Poland, the United Kingdom and Serbia.
Financial guarantee: This alternative is applicable in Austria, Cyprus, Germany, Greece, Hungary, Malta, the Netherlands, Poland and the United Kingdom.
Other: Other available alternatives are ‘special centres’ in Belgium, ‘counselling service’ in Germany, probation in Cyprus and ‘tagging’ in the United Kingdom.
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
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.