Author
The law does not regulate alternatives to detention. Asylum seekers can either be detained in the Foreigners Centre in the vast majority of cases, or rarely in the Asylum Home. The IPA provides that asylum seekers can be detained in the Foreigners Centre only if the measure cannot be effectively applied in the Asylum Home or if the applicant has left the premises of the Asylum Home, despite the measure being applied.[1] While the Foreigners Centre is a closed facility under the jurisdiction of the Police, the Asylum Home is an open centre guarded by security staff of a private company. Thus, applicants cannot be physically prevented from leaving the Asylum Home even if detention is imposed on them.
The competent authorities usually consider the detention in the Asylum Home as an alternative to detention. However, according to the case law of Administrative Court,[2] the measure amounts to a deprivation of liberty and not limitation on freedom of movement and therefore represents detention and not an alternative.[3]
The law also does not contain provisions that require proof that the alternatives cannot be effectively applied nor provisions that detention can be applied only as a measure of last resort.
In practice, individual circumstances are often not properly justified in the detention decision and the necessity and proportionality test is not implemented sufficiently.
In 2022 asylum seekers were not detained on the premises of the Asylum Home.[4]
[1] Article 84(2) IPA.
[2] Administrative court judgements: I U 62/2022, 19. January 2022, I U 59/2022, 19. January 2022 and I U 1887/2021 30. December 2021.
[3] Constitutional Court, Decision Up-1116/09, 3 March 2011, available at: http://bit.ly/2DA8oSH.
[4] Official statistics provided by the Migration directorate, March 2023.