Third-country nationals are placed in administrative detention centres only for the purpose of removal.1 While persons who claim asylum during their administrative detention were previously not automatically released as a result of the asylum application, the reform of the law on asylum states that they have to, except if, based on a motivated and written decision, the Prefect considers that the claim aims solely to avoid an imminent removal.2 Remaining cases of detained asylum seekers should be examined through an accelerated procedure which implies that OFPRA has to issue a decision within 96 hours. If this is not possible to OFPRA, detained asylum seekers have to be released.3
Now that the appeal before the CNDA has a suspensive effect for asylum seekers channelled into the accelerated procedure, it shall not be legally possible to place such asylum seekers in administrative detention from the moment they receive a negative decision from OFPRA and a return decision has consequently been issued.4 In practice, it has not been the case that asylum seekers were detained pending a decision from the CNDA.
Asylum seekers under the Dublin procedure can also be placed in administrative detention with a view to the enforcement of their transfer once the readmission decision has been notified. In practice, whereas applicants were placed less and less frequently in administrative detention and Prefectures resorted increasingly frequently to house arrest for asylum seekers under the Dublin procedure in 2014, 834 asylum seekers were detained in view of their removal to another EU country under the Dublin III procedure in 2015.5 In the detention centre of Vincennes, an asylum seeker potentially placed under Dublin procedure will not see his or her asylum claim transmitted to OFPRA. He or she will remain detained during the procedure of determination of the State responsible of his or her asylum claim. This case occurs only if the asylum seeker has not been registered as such before being detained.6 As mentioned previously, the issue is important in Paris and its surroundings considering the difficulties to access to orientation platforms in order to be registered as asylum seeker at the “single desk”.
Their number shall increase in the coming months and years as the Law on immigration of March 2016 allows Prefectures to put asylum seekers under the Dublin procedure under house arrest during the duration of the procedure for the determination of the responsible Member State.7 The house arrest decision can last 6 months and can be renewed once for the same period. It has to be motivated. The Prefecture is also allowed to keep the passport or identity document of the asylum seeker.
However, if Dublin asylum seekers are declared as “missing” because they have not been transferred during the 6-month period and they are stopped during a random identity check during the 18 months period, they will most probably be placed in detention directly as the risk of absconding would seem high.
An instruction of the Ministry of Interior issued on 19 July 2016 to Prefectures refers to the definition of a “risk of absconding” in the Dublin context, allowing for the placement of a person in administrative detention. The Ministry mentions the following criteria as indicative of such a risk:8
The individual has left the place where he or she is required to reside;
The individual has not appeared following several summons or has not respected reporting obligations in the context of house arrest.
The instruction adds that Prefectures should determine the existence of a risk of absconding where the person subject to a Dublin procedure does not cooperate with their services in the implementation of the transfer.9
- 1. Article L.554-1 Ceseda.
- 2. Article L.556-1 Ceseda.
- 3. Ibid.
- 4. Article L.551-1(6) Ceseda.
- 5. Assfam et al., 2015 Detention report, 28 June 2016.
- 6. Ibid.
- 7. Article L.742-2 Ceseda, as amended by the Law of 7 March 2016.
- 8. Ministry of Interior, Instruction NOR: INTV1618837J of 19 July 2016 relating to the application of the Dublin III Regulation – Resort to house arrest and administrative detention in the context of execution of transfer decisions, 5.
- 9. Ibid.