Author
Asylum seekers are informed orally about the reasons for their detention in a language they understand by the officials of the Migration directorate and by their legal representatives, if they are represented. They are given legal instruction on reasons for detention, the procedure, the right to judicial review and information on the help of refugee counsellors. Then, the Migration directorate has to issue a written decision within 48 hours and serve it to the applicant within the next three working days. The decision states the reasons for detention, together with information about judicial review.[1] The dictum, the essential reasons for the decision and the legal instruction are translated in a language the applicant understands.[2] In addition, a list of refugee counsellors, together with the instruction on how to contact them, is given to the applicant in a language he understands.
Applicants have the right to challenge the detention order before the court. They can file for judicial review before the Administrative Court within three days of notification of the decision. The Court has to conduct an oral hearing and take a decision within three days.[3] In 2023, 45 detention orders were issued by the UOIM and the Ministry. According to the provided information by the UOIM and the Ministry all were challenged before the court.[4] However, according to the statistics of the Administrative Court only 27 judicial reviews against a detention order were lodged. In 11 cases, the appeal was granted and the detention order was lifted.[5]
There is no automatic review of the lawfulness of detention. However, the President of the Administrative Court can decide that a supervision of the application of the measure in practice needs to be performed. The President of the Administrative Court then appoints one or more judges with instructions on the timeframes, places or specific asylum seekers placed under their supervision. If it is concluded that the reasons for detention of a certain asylum seeker no longer exist, the President of the Administrative Court can order the termination of the detention measure.[6] In 2023, the Administrative Court carried out such supervision of detention of asylum seekers in 2 cases. In one case, they conducted a visit to the Foreigners centre and in 1 case they only issued a report on the implementation of the measure.[7]
While the duration of court procedures is a problem in other types of procedures, such as judicial review of rejection and Dublin decisions, the time limits set in law are generally respected in detention cases. Judicial review is considered effective considering that many detention orders are annulled by the court. However, the outcome of cases has been very unpredictable and often depends on the individual judge deciding on the case.[8]
In addition, the applicant has the possibility to appeal against the decision of the Administrative Court to the Supreme Court. According to the IPA, the Supreme Court has 30 days to decide on the appeal.[9] In practice, however, it takes longer and asylum seekers are often released before a decision on their appeal is issued.
[1] Article 84(5) IPA.
[2] Article 6(5) IPA.
[3] Article 84(7) IPA.
[4] Official statistics provided by the Migration directorate and UOIM, March 2024.
[5] Official statistics provided by the Administrative Court, March 2024.
[6] Article 84(6) IPA.
[7] Official statistics provided by the Administrative Court, March 2024.
[8] Observation by the PIC.
[9] Article 70(3) IPA.