Author
According to the law, an applicant for international protection may be detained by the police only where less coercive alternatives cannot be effectively applied and where detention is necessary to achieve one of the exhaustively listed purposes.
Detention may be ordered:
- in order to establish or verify the applicant’s identity or nationality;
- in order to determine the elements on which the application for international protection is based, which could not be obtained in the absence of detention, in particular where there is a risk of absconding;
- where the third-country national concerned has already been detained in the context of administrative expulsion proceedings for the purpose of enforcing removal or an expulsion penalty, has subsequently lodged an application for international protection, and there are reasonable grounds to believe that the application was submitted solely in order to delay or frustrate the enforcement of the removal decision;
- where detention is necessary for reasons of national security or public order; or
- in order to secure the preparation or implementation of a transfer pursuant to a separate legal instrument, where there is a significant risk of absconding.
Applicants for international protection may be detained both in the regular asylum procedure and in Dublin procedures. They are detained together with other categories of detained third-country nationals in both police detention facilities for foreigners. When accommodating a detained third-country national, the facility must take into account the person’s age, state of health, family and kinship relations, as well as religious, ethnic or national specificities.
Men, women and persons under 18 years of age must be accommodated separately from unrelated adults of the opposite sex and from older persons. An exception may be made in the case of third-country nationals who are related.
Families must, as a rule, be accommodated together within the facility. Where the facility decides to separate family members, it must ensure that the consequences of such separation are proportionate to the reasons justifying it.
An applicant for international protection may be detained only for the period strictly necessary and for as long as the grounds for detention persist.
The total duration of detention of an applicant for international protection must not exceed six months where detention is ordered on one of the following grounds:
- in order to establish or verify the applicant’s identity or nationality (point (a));
- in order to determine the elements on which the application for international protection is based, which could not be obtained in the absence of detention, in particular where there is a risk of absconding (point (b));
- where the applicant was previously detained in administrative expulsion proceedings, has subsequently lodged an application for international protection, and there are reasonable grounds to believe that the application was submitted solely in order to delay or frustrate the enforcement of the removal decision (point (c)); or
- in order to secure the preparation or implementation of a transfer pursuant to a separate legal instrument, where there is a significant risk of absconding (point (e)).
Where detention is ordered on the ground that it is necessary for reasons of national security or public order (point (d)), the total duration of detention of an applicant for international protection must not exceed 18 months.
The detention grounds do not apply to UAMs. UAMs may therefore not be detained.
The police authority is subject to a number of procedural obligations vis-à-vis detained third-country nationals, including applicants for international protection. In particular, it must:
- provide information to the third-country national immediately after detention, in a language which he or she understands, on:
(1) the reasons for detention;
(2) the possibility to notify the diplomatic or consular authorities of the country of nationality;
(3) the possibility to inform a close relative and a legal representative of the detention; and
(4) the possibility to challenge the lawfulness of the detention decision;
- notify without delay the diplomatic or consular authorities of the country of nationality upon request of the detained person. Where the country concerned has no diplomatic representation in Slovakia, the Ministry of Foreign and European Affairs is informed;
- enable the detained person, upon request, to inform a close relative and his or her legal representative without delay;
- examine throughout the entire period of detention whether the purpose of detention continues to exist;
- inform the third-country national, in a language which he or she understands or may reasonably be presumed to understand, about the possibility to apply for assisted voluntary return, the possibility to contact non-governmental organisations, and – where the person has applied for international protection or expressed the intention to do so – also about the possibility to contact the Office of the UNHCR.
As regards the obligation to review the necessity of detention throughout its duration, there is limited evidence that such ex officio assessments are carried out systematically. According to information available to civil society organisations, releases prior to the expiry of the detention period on the initiative of the police authority appear to be rare. In most cases, detention ends upon expiry of the statutory time limit or following a court decision, rather than as a result of a proactive reassessment by the authorities.
The lodging of an asylum application or a request for assisted voluntary return by a detained third-country national does not, in itself, constitute a legal ground for release from detention.[1] However, if the submission of an asylum application causes the original purpose of detention to cease (e.g. enforcement of administrative expulsion), the authorities often re-detain the applicant under Section 88a(1)(c) of the Act on the Residence of Foreigners on the grounds that the asylum application was allegedly lodged solely to delay or prevent the execution of the administrative expulsion.
[1] Article 88(3) of the Act on Residence of Foreigners.