Asylum seekers are not placed in administrative detention centres for the purpose of the asylum procedure.1 While persons who claim asylum during their administrative detention were previously not automatically released as a result of the asylum application, the law 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
As the appeal before the CNDA has a suspensive effect for asylum seekers channelled into the accelerated procedure, it is not 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.
Detention under the Dublin Regulation
Asylum seekers under the Dublin procedure can be placed in administrative detention with a view to the enforcement of their transfer once the transfer decision has been notified, where there is a “significant risk of absconding”.
In line with the CJEU’s ruling in Al Chodor, the Court of Cassation clarified on 27 September 2017 that the absence of a legislative provision setting out the objective criteria for determining the existence of a “significant risk of absconding”, specific to the Dublin system, precluded the applicability of detention for the purpose of carrying out a Dublin transfer.5 Until this judgment, the “risk of absconding” was determined on the basis of the provision governing return procedures,6 as well as guidance to Prefectures. An instruction of the Ministry of Interior issued on 19 July 2016 to Prefectures referred to the definition of a “risk of absconding” in the Dublin context, allowing for the placement of a person in administrative detention. The Ministry mentioned the following criteria as indicative of such a risk:7
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 added 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.8
In response to the Court of Cassation ruling, a bill has been introduced to define the following criteria for the existence of a “significant risk of absconding”, where an applicant inter alia:9
Has previously absconded from the Dublin procedure in another country;
Has received a rejection decision in the responsible Member State;
Has been found on French territory following the execution of a transfer.
The bill would also permit Prefectures to place asylum seekers in detention during the procedure for the determination of the responsible Member State, contrary to an opinion issued by the Council of State on 19 July 2017, which highlights the unlawfulness of detaining an applicant before a Dublin request has been accepted by the country concerned.10
Nevertheless, some Prefectures continue to detain asylum seekers despite the Court of Cassation ruling. In the four administrative detention centres visited by France terre d’asile, 145 persons have been placed in Dublin detention since the judgment.11
In practice, whereas applicants are placed less and less frequently in administrative detention and Prefectures resorted increasingly frequently to house arrest for asylum seekers under the Dublin procedure, 2,208 asylum seekers were detained in view of their removal to another EU country under the Dublin procedure in 2016.12 Applicants may remain detained during the procedure of determination of the State responsible of their asylum claim. This case occurs only if the asylum seeker has not been registered as such before being detained.13 As mentioned in General, 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 increased by 164.7% compared to 2015,14 as the law now 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 (see Alternatives to Detention).15
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 extended 18-month period (see Dublin: Procedure), they will most probably be placed in detention directly as the risk of absconding would seem high.
- 1. Article L.554-1 Ceseda.
- 2. Article L.556-1 Ceseda.
- 3. Ibid.
- 4. Article L.551-1(6) Ceseda.
- 5. Court of Cassation, Decision No 1130, 27 September 2017. See also Court of Cassation, Decision No 17-14866, 7 February 2018.
- 6. Article L.511-1 Ceseda.
- 7. 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.
- 8. Ibid.
- 9. Proposition de loi permettant une bonne application du régime d’asile européen, 24 October 2017, available in French at: http://bit.ly/2DUKsac. See also the concerns raised by the Ombudsman: Opinion n. 18-02, 10 January 2018, available in French at: http://bit.ly/2Dvkpte.
- 10. Conseil d’Etat, Opinion No 408919, 19 July 2017.
- 11. France terre d’asile, 12 February 2018, available in French at: http://bit.ly/2HcZQAj.
- 12. Assfam et al., 2016 Detention report, June 2017, available in French at: http://bit.ly/2vs38Jj.
- 13. Ibid.
- 14. Ibid.
- 15. Article L.742-2 Ceseda.