For many years now, the use of administrative detention of asylum seekers and irregular migrants in Europe is a rule, rather than an exception.

EU policy is quite well defined. However, harmonised legislation in the 27 EU Member States provides for only a very few common minimum standards:

• Detention in the context of the reception of asylum seekers: The 2003 Reception Conditions Directive states that EU Member States "may confine an applicant (for asylum) to a particular place in accordance with their national law", when "it proves necessary, for example, for legal reasons or for reasons of public order" (Article 7). There is a dissent among EU Member States concerning the applicability of this Directive to reception in closed facilities or premises (detention).
• Detention in the context of asylum procedures: The 2005 Asylum Procedures Directive only mentions that EU Member States "shall not hold a person in detention for the sole reason that he/she is an applicant for asylum" (Article 18).
• Detention in the context of return: The 2008 Returns Directive allows Member States to detain only when migrants are "subject to return procedures in order to prepare the return and/or carry out the removal process".  While the Directive dictates that "detention shall be for as short a period as possible", it does allow for the detention of a migrant for up to 18 months.
• Detention in the context of the Dublin II Regulation: This represents a particular issue as the 2003 Council Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (Dublin II Regulation) is relevant for asylum procedures as well as for forcible return.  This Regulation does not offer specific guidelines on the use of detention.  However in practice, Member States regularly detain asylum seekers who await a 'Dublin transfer'.

FUNDAMENTAL RIGHTS

Since its establishment in 2007, the EU Fundamental Rights Agency (FRA) has intervened on several occasions in the discussion and debate on immigration detention in Europe. Particularly the FRA report on 2010, Detention of Third Country Nationals in Return Procedures, has helped policymakers and civil society organisations improve their understanding of how detention can impact fundamental rights. In summer 2012, FRA released its 2011 Annual Report, which highlights among other things asylum and migraton statistics in the EU, as well as the implementation of alternatives to detention and the quality of asylum procedures. 

The Charter of Fundamental Rights of the European Union

2000 Charter of Fundamental Rights of the European Union (78.41 KB)

The Charter was proclaimed at the European Council in Nice on 7 December 2000, by the presidents of the Council, the European Parliament and the Commission. However, it was not then incorporated into the Treaties establishing the European Union.

THE COMMON EUROPEAN ASYLUM SYSTEM

The European Commission issued a Green Paper on a Common European Asylum System (CEAS) in 2007, with the purpose of commencing the 2nd phase of asylum system harmonisation. The 2nd phase follows on the minimum standards created within the 1st phase by reviewing those existing instruments and proposing amendments to improve those standards. JRS and other NGOs and Civil Society organisations commented on the Commission's Green Paper in the summer of 2007. In July 2008 the Commission incorporated the opinions of Civil Society and other stakeholders into policy plan on asylum and on migration. As the French Presidency of the Council gets underway in the second half of 2008, the Commission will release proposal amendments to the Reception Conditions Directive and the Dublin Regulation.

2007 Memorandum to the Commission by the Brussels 'Christian Group' on CEAS (191.82 KB)

*The 'Christian Group' includes JRS Europe, Caritas Europa, the International Catholic Migration Commission (ICMC), the Commission of the Bishops' Conferences of the European Community (COMECE), the Churches' Commission for Migrants in Europe (ICMC), the Quaker Council for European Affairs (QCEA) and the Evangelical Church of Germany (EKD).

2007 JRS Memorandum to the Commission on CEAS (119.57 KB)

June 2008, European Commission Communication on Asylum (151.37 KB)

June 2008, European Commission Communication on Migration (181.86 KB)
 

REPORTS AND ARTICLES

2008 European Parliament Report on Detention Conditions for Vulnerable Persons (2.74 MB)

2007 European Commission evaluation report of Dublin II Regulation (52.51 KB)

2007 European Commission evaluation report of Reception Directive (159.93 KB)

2006 EU policy and legislation: An introductory background - By Cornelia Bührle RSCJ (439.02 KB)