Author
The MoI may decide to detain an applicant for international protection in a reception centre or in a detention centre if so-called special measures (i.e., alternatives to detention) cannot be effectively applied, if:[1]
- the purpose of the detention is to reliably establish or verify their identity;
- they present a forged or falsified identity document and their identity is not otherwise known;
- there are grounds for believing that they could pose a danger to the security of the state or public order;
- they will be transferred to another EU Member State under the Dublin III Regulation and there is a serious risk of absconding, in particular if they have already evaded or attempted to flee in the past, or have expressed an intention not to respect a final decision on transfer to another EU Member State under the Dublin III Regulation or if such an intention is evident from their conduct;
- the application for international protection has been lodged in a detention facility and there are reasonable grounds for believing that it has been made solely with a view to avoiding or delaying the threat of expulsion, extradition or surrender under a European arrest warrant for prosecution or imprisonment abroad, although the person could have applied for international protection earlier; or
- the applicant has seriously violated an obligation imposed by an alternative to detention.[2]
If it is not possible to effectively apply an alternative to detention, the Immigration Police shall detain a foreigner who has unlawfully entered or stayed in the territory of the Czech Republic for the necessary period of time for the purpose of their transfer pursuant to the Dublin III Regulation.[3]
In the case of an applicant for international protection who is a vulnerable person within the meaning of section 2(1)(i) of the Asylum Act, 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.[4] 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. As such, the police are authorised to detain an unaccompanied minor only if there is a reasonable risk that they may endanger the security of the State or seriously disturb public order and if it is in their best interest to do so, in accordance with the Convention on the Rights of the Child.[5] In the event of reasonable doubt that an unaccompanied foreigner is a minor, the police are entitled to detain the foreigner until their actual age is established. The police shall initiate actions to establish the age of the foreigner without delay after their detention. If the foreigner refuses to carry out the age ascertainment procedures, they shall be regarded as an adult. If the results of the age determination are inconclusive, the foreigner shall be regarded as an unaccompanied minor.
The Immigration Police shall issue a new decision on detention if the MoI has not issued such a decision pursuant to § 46a Asylum Act, if the foreigner detained for the purpose of their expulsion applied for international protection in detention and there are reasonable grounds to believe that, although they could have applied for international protection earlier, they have submitted an application for international protection with the aim of avoiding or delaying the threat of expulsion, extradition or transfer for prosecution abroad.[6] This provision is only rarely used in practice.
If an alternative to detention cannot be effectively applied, the police is entitled to detain a foreigner who has submitted an application for international protection for the purpose of their administrative expulsion, if their expulsion has already been finally decided or administrative expulsion proceedings have been initiated on grounds pursuant to § 119(1)(a) or § 119(1)(b)(6) or (7) Immigration Act.[7] This provision is only extremely rarely used in practice. According to the jurisprudence, its wording is not sufficiently clear to be applied in practice.[8]
Most asylum seekers who have applied for international protection in the territory in the Zastávka reception centre are not detained. In contrast to that, most asylum seekers who have applied for international protection in a detention centre or at the Václav Havel airport are detained.
The grounds for detention are generally interpreted broadly by the MoI and the Immigration Police. Issues of concern include the following:
- Lack of vulnerability assessment at the beginning of detention and throughout the detention period.
- Broad interpretation of various detention grounds, including, ‘reasonable grounds for believing that an application has been made solely with a view to avoiding or delaying the threat of expulsion’, ‘risk of absconding’ and ‘danger to the public order’.
- Lack of adequate review of whether the grounds for detention continue to persist throughout the detention period.
- Length of detention, which is typically set close to the maximum permissible detention period, without due regard to the purpose of the detention in each case.
- Amendments to the Asylum Act adopted in the context of the EU Pact on Asylum and Migration will allow for immigration detention of families with children starting from June 2026.
The Immigration Police shall decide to detain a foreigner for the purpose of their transfer under the Dublin III Regulation only if there is a serious risk of absconding.[9] A serious risk of absconding in the context of the Dublin III procedure is defined in section 129 (4) of the Immigration Act and section 46a (1) (d) of the Asylum Act.
Under the Asylum Act, individuals are detained for the purpose of their Dublin transfer if they have come to the Zastávka reception centre in order to lodge their asylum application, they have an active EURODAC hit and there is a serious risk of absconding defined in section 46a (1) (d) of the Asylum Act. A serious risk of absconding is deemed to exist if the foreigner has been staying in the territory irregularly, has previously avoided transfer to another EU Member State or has attempted to abscond or has expressed an intention not to comply with a final decision on transfer, or if such an intention is evident from their conduct.[10]
Under the Immigration Act, individuals are detained for the purpose of their Dublin transfer if they have been found to be staying irregularly in Czech territory, have an active EURODAC hit and there is a serious risk of absconding defined in section 129 (4) of the Immigration Act. In this case, they are not considered asylum seekers in the Czech Republic within the scope of the Asylum Act, depriving them of added protection for vulnerable groups which the Asylum Act offers. A serious risk of absconding is deemed to exist, in particular, if the foreigner has been staying in the territory irregularly, has previously avoided transfer to another EU Member State or has attempted to abscond or has expressed an intention not to comply with a final decision on transfer or if such an intention is evident from their conduct.[11] Furthermore, a foreigner who is to be transferred to an EU Member State not directly adjacent to the Czech Republic is deemed in serious risk of absconding if they cannot lawfully travel independently to that Member State and cannot provide the address of their place of residence in the territory. A serious risk of absconding is deemed to exist, in particular if the person has already evaded or attempted to flee in the past, or has expressed an intention not to respect a final transfer decision to another EU Member State under the Dublin III Regulation, or if such an intention is evident from their conduct.[12]
In both cases, the usage of the term ‘in particular’ suggests that this definition is demonstrative, meaning that other acts may also be interpreted as falling within the definition of ‘risk of absconding’.
In practice, the risk of absconding is interpreted broadly. Typically it is sufficient for the individual to have entered Czechia irregularly with an active EURODAC hit to be considered at risk of absconding. According to the jurisprudence, a serious risk of absconding usually exists, if the foreigner has set a destination country in the EU, which they were trying to reach irregularly with the help of smugglers to whom they paid a pre-agreed sum to make the journey possible, and where they cross state borders outside official border crossings.[13]
If a person in an irregular situation who has been detained by the Immigration Police for the purpose of their return under the Immigration Act[14] applies for international protection while in detention, they will typically be detained on the basis of a new detention order issued by the MoI on the basis of the Asylum Act.[15] The only exceptions are vulnerable asylum seekers, who can only be detained if they have repeatedly and seriously breached an obligation imposed on them by an alternative to detention.[16] Accordingly, as a rule, vulnerable individuals should be released once they apply for international protection in detention. However, due to the gaps in assessing vulnerability, they are often detained by a new detention order of the MoI. Moreover, even if the MoI decides not to detain them, they can be detained on the basis of a new detention order issued by the police.[17] Accordingly, it cannot be stated that applying for international protection in detention leads to the person’s release.
According to section 46a(13) of the Asylum Act, an asylum seeker must be released without unnecessary delay if:
- the grounds for their detention have ceased to exist;
- the time limit set out in the decision on detention or on the extension of detention has expired;
- the court decides to annul the decision on detention or the decision to extend the period of detention;
- the obligation to release the applicant for international protection arises upon the delivery of the judgment; or
- the applicant for international protection has been granted asylum or subsidiary protection.
[1] Section 46a (1) of the Asylum Act.
[2] Section 46a (2) of the Asylum Act.
[3] Section 129 (1) of the Immigration Act.
[4] Section 46a (3) of the Asylum Act.
[5] Section 129 (5) of the Immigration Act.
[6] Section 124 (4) of the Immigration Act.
[7] Section 124a of the Immigration Act. These grounds include a well-founded risk that a foreign national, during their stay in the territory, could endanger state security or seriously disturb public order (section 119(1)(a)); the fact that a foreign national crosses the state border in hiding or attempts to do so (§ 119(1)(b)(6)) or crosses the state border outside an official border crossing (section 119(1)(b)).
[8] SAC, judgement No 6 As 146/2013-44, 2 April 2014, available in Czech here; SAC, judgement No 1 Azs 146/2019-23, 28 August 2019, available in Czech here.
[9] Section 129(4) of the Immigration Act.
[10] Section 46a(1)(d) of the Asylum Act.
[11] Section 129 (4) of the Immigration Act.
[12] Section 46a (1) (d) of the Asylum Act.
[13] SAC, judgement No 5 Azs 166/2020-54, 8 February 2021, available in Czech here.
[14] Section 124 of the Immigration Act.
[15] Section 46a(1)(e) of the Asylum Act.
[16] Section 46a(3) of the Asylum Act.
[17] Section 124(4) of the Immigration Act.