Duration of asylum detention
Until the end of 2019 the maximum period allowed for detention of an asylum seeker applying from detention was 3 months. The IPA has now laid down an initial 50-day duration for asylum detention, which can be further prolonged by 50-days duration decisions up to 18 months, notwithstanding previous periods spent in pre-removal detention.
In practice, the time limit of detention is considered to start running from the moment an asylum application is formally lodged with the competent Regional Asylum Office or Asylum Unit rather than the moment the person is detained. As delays are reported systematically in relation to the registration of asylum applications from detention, i.e. from the time that the detainee expresses the will to apply for asylum up to the registration of the application (see Registration), the period that asylum seekers spent in detention was de facto longer and may exceed the 3-month time limit that the law lays down. As mentioned by UNWGAD the detention of the asylum seekers exceeds “in practice the maximum three-month period provided by law for asylum seekers due to the delays in registration of asylum applications”.
Beyond setting out maximum time limits, the law has provided further guarantees with regard to the detention period. Thus detention “shall be imposed for the minimum necessary period of time” and “delays in administrative procedures that cannot be attributed to the applicant shall not justify the prolongation of detention.” Moreover, as the law provides “the detention of an applicant constitutes a reason for the acceleration of the asylum procedure, taking into account possible shortages in adequate premises and the difficulties in ensuring decent living conditions for detainees”. However, GCR has documented cases where the procedure is not carried out with due diligence and detention is prolonged precisely because of the delays of the administration.
Finally, it should be mentioned that time limits governing the detention of asylum seekers differ from those provided for the detention of third-country nationals in view of removal. In relation to pre-removal detention, national legislation transposing the Returns Directive provides a maximum detention period that cannot exceed 6 months, with the possibility of an exceptional extension not exceeding twelve months, in cases of lack of cooperation by the third-country national concerned, or delays in obtaining the necessary documentation from third countries.
Duration of the detention of unaccompanied children
Special rules govern the detention of unaccompanied children. Unaccompanied children are detained either on the basis of the pre-removal or asylum detention provisions. In the latter case, unaccompanied asylum seeking children are detained “for the safe referral to appropriate accommodation facilities” for a period not exceeding 25 days. According to the provision in case of “to exceptional circumstances, such as the significant increase in arrivals of unaccompanied minors, and despite the reasonable efforts by competent authorities, it is not possible to provide for their safe referral to appropriate accommodation facilities”, detention may be prolonged for a further 20 days. Finally unaccompanied children can be detained on the basis of the provisions concerning “protective custody”. The latter is subject to no maximum time limit.
On average, unaccompanied children remained for prolonged periods, exceeding one month or months, in pre-removal facilities and police stations. GCR is aware of cases of UAMs remaining in detention for 3 months or more in 2019 and early 2020.
 Article 46(4) L 4375/2016.
 Article 46(5)(b) IPA.
 UNWGAD, ibid.
 Article 46(5)(a) IPA.
 Article 30(5) L 3907/2011.
 Article 30(6) L 3907/2011.
 Article 48(2) IPA.
 Article 118 PD 141/1991.