Detention of asylum seekers

Detention is defined in the recast Reception Conditions Directive as the confinement of an asylum seeker within a particular place, where the applicant is deprived of his or her freedom of movement. Beyond the Directive, the human right to liberty sets out applicable standards in relation to the lawfulness of detention during an asylum procedure. For more information, see:

ECRE, Comments on the Commission Proposal to recast the Reception Conditions Directive, October 2016

ECRE, Information Note on Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast), July 2015

ECRE, Reception and Detention Conditions of applicants for international protection in light of the Charter of Fundamental Rights of the EU, January 2015

AIDA, The Legality of Detention of Asylum Seekers under the Dublin III Regulation, June 2015

The information in this section is up-to-date as of the end of 2015. Updated information covering 2016 will be available in the coming months.

The following section contains information on:

Legal framework of detention

Procedural safeguards

Detention conditions

Legal framework of detention

Article 8 of the recast Reception Conditions Directive sets out the grounds for detention of an asylum seeker. Firstly, the provision prohibits Member States from detaining asylum seekers for the sole reason that they have applied for asylum. The article also obliges Member States to verify whether less coercive alternative measures cannot be effectively applied and states that detention can only be ordered when it proves necessary and on the basis of an individual assessment of each case.

Grounds for detention

Under Article 8(3) of the recast Reception Conditions Directive, an applicant can only be detained for six reasons:

In order to determine or verify his or her identity or nationality;

In order to determine those elements on which the application is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding;

In order to decide, in the context of a procedure, on the applicant’s right to enter the territory;

When he or she is detained subject to a return procedure…when there are reasonable grounds to believe that he or she is making the application for international protection in order to delay or frustrate the enforcement of the return decision;

When protection of national security or public order so requires;

In accordance with the Dublin III Regulation, which permits detention in order to secure transfer procedures where there is a serious risk of absconding.

Article 8 of the Directive requires Member States to lay down the grounds for detention in their national law, as well as the possible alternatives for detention. The following grounds are applicable in AIDA countries:

Dublin Regulation

Identity /
nationality

Public order

Right to enter the territory

Main elements and risk of absconding

Enforcing a return procedure

AT

x

x

x

x

BE

x

BG

x

x

CY

x

x

x

DE

x

x

x

ES

x

x

x

x

FR

x

x

x

GR

x

x

x

HR

x

x

HU

x

x

IE

x

x

IT

x

x

x

x

MT

x

x

x

x

NL

x

x

PL

x

x

SE

x

x

UK

x

x

x

CH

x

x

SR

x

x

x

TR

x

x

Note that the Directive does not bind the UK, Ireland, Switzerland, Serbia and Turkey.

Alternatives to detention

The alternatives to detention mentioned in Article 8(4) of the recast Reception Conditions Directive are: regular reporting to the authorities, the deposit of a financial guarantee, and an obligation to stay at an assigned place.

In practice, residence restrictions are very often used as an alternative to detention with BelgiumBulgariaCyprusSpainIrelandMalta and Sweden not providing this.

The most common alternative is a reporting duty, with only BelgiumCyprusSpainFranceIreland and Serbia not applying this, whereas surrendering documents, an alternative not mentioned in Article 8, is only used in GermanyGreeceCroatiaItalySweden and Switzerland.

A financial guarantee as an alternative is used in AustriaGermanyGreeceHungaryMalta, the NetherlandsPoland and the United Kingdom.

Other alternatives used are ‘special centres’ in Belgium, ‘counselling service’ in Germany and ‘tagging’ in the United Kingdom

Duration of detention

Article 9(1) of the recast Reception Conditions Directive requires detention to be as "short as possible", though no specific time limit is imposed. In practice, AIDA countries have introduced different maximum time limits for detaining asylum seekers, while some use the maximum time limit of 18 months set out in the Return Directive:

*

Maximum time limit for detention (months)

AT

10

BE

8

BG

18

CY

18

DE

18

ES

2

FR

1.5

GR

18

HR

6

HU

6

IE

18

IT

12

MT

12

NL

-

PL

6

SE

12

UK

-

CH

18

SR

6

TR

1

Procedural safeguards

Article 9 of the recast Reception Conditions Directive contains the guarantees for detained applicants.

Judicial review of the detention order

Article 9(3)-(6) of the recast Reception Conditions Directive lays down rules on judicial review of the detention order. The provision requires a speedy judicial review of the detention decision and the review should conducted at reasonable intervals of time.

BelgiumCyprusGreeceCroatiaPoland, the United KingdomSerbia and Turkey do not provide ex officio judicial review of the lawfulness of detention. The remaining AIDA countries have different intervals in which the detention order is reviewed as shown in the table below.

*

Interval (days)

AT

120 

BG

182

DE

30

ES

Ongoing

FR

5, 25

HU

60

IE

21

IT

30

MT

90

NL

30

SE

60

CH

4

Legal assistance for review of detention

Article 9(7) of the recast Reception Conditions Directive obliges Member States to provide access to free legal assistance for review of detention. This at least includes the preparation of the required procedural documents and participation in the hearing before the judicial authorities on behalf of the applicant.

Apart from GermanySpainGreeceHungaryMalta and Switzerland, free legal assistance for review of detention is provided for in the law of all AIDA countries. It is however not applied in practice in BulgariaCyprusPolandHungary, the United Kingdom and Turkey. In both Croatia and Switzerland, free legal assistance is accessible in practice but not legally anchored in law. In Cyprus free legal assistance is not provided for detainees who fall under the category of “prohibited immigrant”.

Detention conditions

Article 10 of the recast Reception Conditions Directive regulates the conditions of detention of asylum seekers. Article 10(1) provides that Member States can resort to detention of applicants in prisons where no specialised detention facility is available and only on the condition that applicants shall be kept separately from ordinary prisoners.

Only SwedenSwitzerland and Serbia provide for the possibility of using prisons to detain asylum applicants and actually apply this in practice. The United Kingdom and Hungary also legally allow this but in practice do not use this provision. Ireland on the other hand does not provide for the possibility of detaining asylum applicants in prisons, but in practice uses prisons as detention facilities.

Most AIDA countries detain asylum seekers in dedicated detention centres, which are also used for the purpose of removal of irregular migrants. The following table contains information on the number and respective capacities of pre-removal detention centres across different countries:

Pre-removal detention centres

Number

Total Capacity

Location

AT

4

699

Vordernberg, Vienna Roßauer Lände, Vienna Zinnergasse, Salzburg

BE

5

452

TC Caricole, RC127bis, Bruges, Vottem, Merkplas

BG

3

940

Busmantsi, Lyubimets, Elhovo

CY

1

256

Menogia

ES

7

1,374

Piñera, Zona Franca, Barranco Seco, Aluche, Sangonera la Verde, Hoya Fría, Zapadores

FR

42

2,003

Several locations in mainland and overseas

GR

8

5,094

Amygdaleza, Corinth, Tavros, Elliniko, Fylakio, Paranesti, Xanthi, Lesvos

HR

1

82

Ježevo

HU

3

472

Békéscsaba, Debrecen, Nyirbator

IT

7

955

Bari, Brindisi, Caltanisetta, Crotone, Roma, Torino, Trapani

MT

2

200

Safi Barracks, B Block

NL

1

1,762

Schiphol

PL

6

558

Biała Podlaska, Białystok, Lesznowola, Kętrzyn, Krosno Odrzańskie and Przemyśl

SE

5

255

Stockholm, Gothenburg, Malmö, Flen, Gävle

UK

10

4,000

Harmondsworth, The Verne, Yarl’s Wood, Dungavel House, Tinsley House, Camspfield House, Cedars, Brook House, Morton Hall, Colnbrook

SR

1

80

Padinska skela

TR

15

2,980

Adana, Antalya, Aydin, Bursa, Çanakkale, Edirne, Erzurum, Gaziantep, Hatay, Istanbul, Izmir, Kirikkale, Kirklareli, Tekirdağ, Van

Article 10(3) of the recast Reception Conditions Directive requires Member States to allow access to UNHCR. The only AIDA country which does not allow access to UNHCR is France. However, CyprusSpainItaly and the United Kingdom limit access for UNHCR.

Other categories allowed access are family members, legal representatives and NGOs according to Article 10(4) of the Directive. Except for SpainItaly and the United Kingdom, where they have limited access, legal representatives have access to detention centres in all AIDA countries.

Unrestricted access for family members is only allowed in GreeceCroatiaHungaryIreland, the NetherlandsSweden and Serbia. Besides Malta, which does not allow access for family members to detention centres, the remaining AIDA countries give limited access. 

NGOs get unrestricted access to detention centres in BulgariaFranceGreeceCroatiaIrelandMalta, the NetherlandsPolandSweden and Serbia, but are not allowed access in Turkey. The remaining countries offer limited access.

Source: aida