Author
The law provides for the right of asylum seekers to receive information in writing regarding the grounds for their detention, access to free legal aid and legal challenges against detention in a language they either understand or are reasonably expected to understand.[1]
The competent authority to impose and review the detention of an asylum seeker in a CIT,[2] or in detention facilities at the border,[3] is the Criminal Court which has territorial jurisdiction over the place where detention occurs. In the case of detention at the border, SEF is required to inform the Criminal Court of the detention within 48 hours upon arrival at the border for purposes of maintaining the asylum seeker in detention beyond that period.[4]
The review of detention can be made ex officio by the Criminal Court or upon request of the detained asylum seeker at all times on the basis of new circumstances or information that have a bearing on the lawfulness of the detention.[5]
According to CPR’s experience, detention reviews (either ex officio or upon request) are uncommon in practice. As such, release usually takes place following admission to the regular procedure or at the end of the maximum detention time limit of 60 days in cases of a negative decision and appeal (see Duration of Detention).
CPR has also observed instances where the special needs of the applicant were not taken into account by the Court when assessing the necessity and proportionality of detention.
In a hearing at the Parliament in December 2020, the Ombudsperson noted that there is a need for dialogue with judicial bodies to ensure that judicial actors are aware of the need for effective judicial control in these cases.[6]
[1] Article 35-B(2) Asylum Act.
[2] Article 35-A(5) Asylum Act.
[3] Article 35-A(5) and (6) Asylum Act.
[4] Ibid.
[5] Article 35-B(1) Asylum Act.
[6] Video recording available at: https://bit.ly/3fZgcAd.