Author
The Asylum Act imposes additional limitations on the detention of vulnerable asylum seekers within the meaning of section 2(1)(i) of the Asylum Act. This provision recognizes as vulnerable, in particular: an unaccompanied minor; a parent or family with a minor child or a parent or family with an adult child with a disability; a person over 65 years of age; a person with a disability or serious illness; a pregnant woman; a victim of trafficking in human beings; or a person who has been tortured, raped or subjected to other serious forms of psychological, physical or sexual violence.
According to section 46a (3) of the Asylum Act, in the case of a vulnerable applicant for international protection, the MoI may, if necessary, decide on their detention only if they are over 18 years of age and have repeatedly and seriously violated an obligation imposed on them by an alternative to detention. This does not include an applicant for international protection who is considered vulnerable due to their disability, if the disability does not prevent their placement in a reception centre or detention. Section 46a (3) of the Asylum Act thus implies that in the case of a vulnerable asylum seeker, the MoI must first make at least one attempt at imposing an alternative to detention before resorting to their detention.[1] Unaccompanied minors cannot be detained under the Asylum Act,[2] nor can alternatives to detention be applied to them.[3]
In contrast to the Asylum Act, the Immigration Act does not impose any such additional limitations and does not recognize specific individuals as vulnerable. This means that in case an asylum seeker is detained under the Immigration Act,[4] they do not benefit from additional protection for vulnerable groups.
However, in practice, due to the lack of assessment of vulnerability, vulnerable asylum seekers are routinely detained both under the Asylum and the Immigration Act.
In the past, the MoI refused to recognize as vulnerable even categories of asylum seekers clearly falling under the protected categories under section 2 (1)(i) of the Asylum Act. These detention decisions have been typically later overturned by courts. For example, the MoI did not recognize as vulnerable a pregnant woman from Iraq with a six year old daughter who was a victim of domestic violence in her country of origin,[5] or an elderly woman of 66 years of age.[6] It did not recognize as vulnerable adults accompanying their minor relatives (i.e., cousins, nephews), claiming these do not constitute a family within the meaning of section 2 (1) lit. i) of the Asylum Act.[7]
More complex situations of vulnerability have been either completely overlooked or downplayed by the MoI and sometimes even by courts. For example, the MoI did not recognize as vulnerable a young woman who escaped forced marriage to an elderly man and was suffering from severe mental health conditions including acute stress reaction, claustrophobia and anxiety disorder. The mental health condition was in the course of her detention confirmed by health reports from her country of origin and by a report from a psychiatric hospital in Czechia where she was brought for examination.[8]
The MoI also did not recognize as vulnerable a family from Türkiye who were Alevites and Kurds, supporters of the HDP-party, and who requested asylum on religious and ethnic grounds and were travelling with an adult child who was suffering from a severe mental health condition. During the asylum interview following their detention, the family explained their son was suffering from panic attacks and insomnia as a result of past persecution in their country of origin. Further, the son never finished high-school and was suffering from depression and fearing to lose his loved ones as he already lost his grandfather when he was 12 years old. According to the family, his health condition was worsening while detained. Due to his health conditions, he was unable to attend the asylum interview, and he explained to the MoI he believed there was something wrong with his heart and his hands were shaking regularly.[9]
Further, the MoI did not recognize as vulnerable a couple with regard to whom the government of their country of origin suspected cooperation with a coup movement. The woman, who previously worked as an attorney, was imprisoned in pre-trial detention for eight months and subjected to inhumane and degrading treatment, as she was strip searched and refused food and the possibility to shower. After she was released from pre-trial detention, she lived in hiding for two years before leaving her country of origin. She provided the court with the judgement from her country of origin according to which she was sentenced to imprisonment for 7 years. Her husband was sentenced to imprisonment for 6 years and, while in pre-trial detention, was subjected to physical and psychological pressures to confess.[10]
Children in families are routinely detained for the purpose of their Dublin transfer under the section 129 of the Immigration Act. In most cases, this detention has been annulled by the courts. Unaccompanied minors awaiting or undergoing an age assessment who have been found to have entered the country irregularly and have an active EURODAC hit are also routinely detained in the context of their expected Dublin transfer under section 129 of the Immigration Act.[11] In some cases, this detention has been annulled by the courts either due to a lack of reasons in the decision or to the failure to adequately consider the rights of accompanying minors or address disputed ages. In cases where adults were detained alongside children—such as cousins or siblings— courts ruled that the detention of the adult effectively deprived the children of their liberty, requiring a rigorous evaluation of the best interests of the child and the necessity of such an extreme measure. Furthermore, decisions were annulled when authorities failed to investigate credible evidence of a foreigner’s minority status, such as birth certificates, or neglected to provide detailed, individualized reasoning for why milder alternatives to detention were insufficient for vulnerable groups.[12]
[1] Regional Court in Prague, judgement No 49 A 9/2018- 37, 30 November 2018, available in Czech here.
[2] Section 46a(3) of the Asylum Act.
[3] Section 47(3) of the Asylum Act.
[4] Sections 124(4) and 129 of the Immigration Act.
[5] Regional Court in Prague, judgement No 49 A 9/2018- 37, 30 November 2018, available in Czech here.
[6] Regional Court in Prague, judgement No 56 A 4/2021-17, 25 February 2021, available in Czech here.
[7] SAC, judgement No 5 Azs 306/2022-48, 8 December 2022, available in Czech here; SAC, judgement No 5 Azs 307/2022-76, 8 December 2022, available in Czech here.
[8] SAC, judgement No 6 Azs 259/2022-49, 20 April 2023, available in Czech here.
[9] Municipal Court in Prague, judgement No 50 A 8/2022-27, 10 October 2022, available in Czech here.
[10] Municipal Court in Prague, judgement No 48 A 4/2021-20, 4 October 2021, available in Czech here; Regional Court in Prague, judgement No 49 A 4/2021-20, 4 October 2025, available in Czech here.
[11] Section 129(5) of the Immigration Act.
[12] See, e.g., Municipal Court in Prague, judgement No 19 A 3/2025‑ 20, 6 February 2025, available in Czech here; Regional Court in Brno, judgement No 22 A 18/2023 – 24, 7 July 2023, available in Czech here; SAC, judgement No 2 Azs 275/2022 – 34, 16 June 2023, available in Czech here.