Grounds for detention

Author

JRS Romania

Detention of asylum seekers in specially designed closed spaces

Under Article 19^5(1) of the Asylum Act, when Alternatives to Detention cannot be applied, IGI may place asylum seekers in specially designed closed places to carry out the necessary procedural steps and to limit abuse to the procedure, for the following reasons:

• To verify the applicant’s identity;
• To establish the elements on which the application is based, which could not be obtained in the absence of this measure, in particular where there is a risk of absconding by the applicant;
• At the request of one of the institutions with responsibilities in the field of national security, from which it follows that the applicant presents a danger for the national security.

The law provides that the “risk of absconding” within the meaning of Article 19^5(1)(b) of the Asylum Act is to be understood as the factual situation which justifies the assumption that the applicant absconds from performing the activity of determining the elements of the asylum application made with the occasion of the personal interview.[1] The Asylum Act sets out the criteria for determining the existence of a “risk of absconding”:[2]

• The applicant crossed or was caught trying to illegally cross the state border of Romania after filing the asylum application;
• The applicant was caught trying to illegally cross the state border of Romania, and the asylum application was filed after the person was apprehended;
• There are reasons to believe that the applicant intends to leave Romania after filing the application.

The measure of placement in specially designed closed spaces cannot be ordered in relation to asylum seekers subject to the Dublin procedure or to a measure of removal or expulsion from the Romanian territory.[3]

Detention of asylum seekers in public custody centres

Under Article 19^13 of the Asylum Act an asylum seeker may be placed or maintained in detention (“public custody”) in the cases foreseen by the Aliens Ordinance,[4] as well as in the following cases:

• In order to carry out the transfer to the responsible Member State under the Dublin Regulation, where there is a significant risk of absconding;[5]
• Where the applicant was detained with a view to removal or expulsion from Romania and filed an application in order to delay or prevent enforcement of the removal or expulsion measure, having had the possibility to lodge an application before.

The Asylum Act sets out a different set of criteria for the determination of a “significant risk of absconding” in the Dublin procedure, referring to cases where the applicant:[6]

1. Has irregularly crossed the border and their fingerprints match with a Eurodac ‘hit’;
2. Has irregularly crossed the external border of the EU Member States or Schengen countries, or was caught trying to irregularly cross the Romanian border and applied for asylum after being apprehended;
3. Has irregularly crossed or attempted to cross the Romanian border after applying for asylum in Romania;
4. Has applied for asylum in Romania after having been transferred to the responsible Member State;
5. Has not complied with alternatives to detention;[7]
6. Opposes the transfer to the responsible Member State.

In practice, in most cases asylum seekers are detained on the territory. Most stakeholders reported that detention in public custody is generally not ordered. These asylum seekers are usually detained if they cross or attempt to cross into Hungary. According to the Director of the Regional Centre Stolnicu, applicants subject to the Dublin procedure were never placed in detention. However, in 2023, IGI-DAI mentioned that detention was ordered in the case of 3 Syrian nationals subject to a Dublin procedure, but no further details were provided.[8]

Whereas prior to 2015 the Aliens Ordinance required the release of the foreigner from detention as soon as a first application for international protection was lodged, the law now prescribes that an asylum seeker is only released when they are granted access to the regular procedure. Therefore, if they are assessed in an Accelerated Procedure, they will stay in detention until the asylum procedure is concluded. If the application is rejected and the asylum seeker lodges an appeal, they shall remain in detention while the appeal is examined. When the applicant makes a subsequent application, detention ceases on the date they are granted access to the new procedure.[9] If the application is rejected and the asylum seeker lodges an appeal, they shall remain in detention while the appeal is examined.

[1] Article 19^6(3) and (2) Asylum Act.

[2] Article 19^6(4) Asylum Act.

[3] Article 19^2(3) Asylum Act.

[4] Article 101(2) Aliens Ordinance. The measure of public custody is ordered against a foreigner who cannot be removed under escort within 24 hours and who: (a) risks absconding from removal; (b) avoids or hampers the preparation of the return or removal under escort process; or (c) is subject to expulsion.

[5] Article 19^13 Asylum Act, in conjunction with Article 19^14(1) Asylum Act.

[6] Article 19^14(2) Asylum Act.

[7] Article 19^14(2)(e) Asylum Act, citing Article 19^2(1)(a)-(b).

[8] Information provided by IGI-DAI, 18 January 2024.

[9] Article 101(8) Aliens Ordinance.