4.8.2. Recourse to detention

Recourse to detention was one of the primary concerns raised by NGOs. In a number of countries, concerns were expressed over the practice of detaining applicants at the border708 or in general de facto detention while newly-arriving third-country nationals were waiting to lodge an application.709 Doctors Without Borders highlighted in May 2022 the prolonged detention of more than 2,500 asylum seekers and migrants in inhuman conditions in Lithuania, 9 months after they crossed the border from Belarus.710 The organisation called on the government to end the prolonged detention as soon as possible and to ensure an equal asylum system that respects the dignity of people seeking security.711

Amnesty International also pointed to the arbitrary detention of thousands of people in militarised centres in Lithuania and stated that they were held in inhuman conditions, tortured and ill-treated.712 In reply, the Minster of the Interior noted that they cooperated openly in providing information for the report yet it reflects the views and testimonies of only one side.713

In Greece, four NGOs issued a joint statement on the prolongation of de facto detention in CCACs following a court decision that the exit ban for an applicant, who had been detained for 1.5 months, be immediately revoked.714 Several concerns were also raised about detaining applicants from a safe third country, despite the lack of prospects for readmissions to Türkiye.715

In Malta, aditus continued to share concern over the prolonged and illegal detention of migrants,716 while court actions were initiated for the immediate release of detainees.717^,718 In view of the national elections, the organisation put forward a number of proposals in 2022 with regard to rescues at sea and disembarkation, administrative detention, reception, family reunification, the regularisation of undocumented migrants, the statelessness determination procedure and the decriminalisation of illegal entry for refugees and asylum seekers.719

In Italy, NGOs called to discontinue the illegal use of quarantine vessels for migrants since emergency measures were suspended on 30 April 2022 for all individuals arriving legally and a legal basis no longer existed for the de facto detention.720 The use of quarantine vessels was provisionally extended by the authorities until the end of May 2022, with two boats being used for migrants arriving by sea or crossing the borders illegally.

The Organisation for Aid to Refugees voiced concern about immigration detention being used as a routine tool of migration control in Czechia.

Similar issues were noted by independent monitoring bodies. The CPT published a report following its visit to Switzerland in 2021.721^,722 It found that foreigners were placed in a detention centre for several days before being relocated to administrative places for foreigners. The CPT recommended to the Swiss authorities to speed up the procedure to ensure an earlier transfer to administrative detention centres and enhance relevant conditions.

The placement of detained third-country nationals in isolation was also noticed by CPT in the case of Sweden. The organisation recommended a review of the legal framework and the practice of placing detained foreign nationals in isolation, in addition to terminating the practice of placing persons detained under aliens’ legislation in prisons.723

The Council of Europe's Commissioner for Human Rights published report on its visit to Malta, calling on the authorities to prevent the detention of vulnerable asylum seekers and migrants and any arbitrary detention, to invest in alternatives to detention, immediately end the detention of migrant children, protect migrants from ill treatment and abuse, and provide independent monitoring bodies and NGOs unhindered access to detention places.724

National independent bodies contribute significantly to the monitoring of detention conditions in the field of international protection. For example, during a visit to the detention centre in August 2022, the Bulgarian Ombudsperson noted the detention of unaccompanied minors who were under investigation arrest in Ruse for a long duration in very poor conditions.725 In Italy, the National Guarantor for the Rights of Persons Detained or Deprived of Liberty expressed concern over what was considered de facto detention in transit zones, noting the persisting practice at air or port borders where the effective rejection of the foreign citizen at a border crossing does not take place immediately and people are blocked for days in the transit area. The National Guarantor was concerned over the lack of a judicial review of detention and the conditions of detention.726

In Estonia, the Chancellor of Justice (Ombudsperson) issued a position on the detention of a foreigner who had been refused entry, noting that the current conditions of Tallinn Airport may not be suitable for detention for more than 24 hours or overnight.727 The Ombudsperson asked the PBGB to consider whether the current practice could be made more flexible and to align the agency's activities with the standards and principles of international organisations dealing with the detention of foreigners.

In Lithuania, the Seimas Controller concluded in a report that the conditions in the Medininkai FRC residential container camp amounted to de facto detention and inhuman and degrading treatment due to the nature and degree of restrictions applied to all foreigners for a long duration without the right to freely leave the territory.728 The National Guarantor for the Rights of Persons Detained or Deprived of Liberty noted in its annual report to the parliament that Italy continued to adopt practices of closing borders, criminalisation and detention of migrants.729^,730

The lawfulness or excessive use of detention is often under a judicial review. In a number of cases, the ECtHR questioned the unlawfulness of detention, for example in Dshijri v Hungary, R.M. and Others v Poland in the course of a Dublin procedure, Nikoghosyan and Others v Poland for the administrative detention of asylum seekers at the Polish border, M.B.K and Others v Hungary for the confinement of Afghan applicants in the Röszke transit zone, and Komissarov v Czech Republic due to serious delays in processing an asylum application and delays in the extradition procedure leading to unlawful detention.

At the national level, courts ordered the review of detention decisions in Germany, Lithuania, Malta, Poland, Slovenia (here and here), Switzerland, the immediate release of detainees in Malta and granted compensation to detainees in Poland.

The courts also play an important role in interpreting relevant rules. For instance, the Court of Cassation in Belgium ruled in one case that appeals and appeals in cassation concerning the legality of detention could not be considered devoid of purpose in the case of a release or withdrawal of the detention order, in conformity with previous ECHR case law. In Estonia, the Supreme Court clarified how the time limits for detention outlined in the Dublin III Regulation should be interpreted in conjunction with national law. The Migration Court of Appeal in Sweden ruled that, if an applicant returns to the country after a removal and a new detention order is issued, it cannot be considered as a review of a previous detention order.

On the prolongation of detention, the Lithuanian Supreme Administrative Court concluded that an applicant’s right to free movement cannot be restricted after a period of 6 months solely based on the fact that they entered the territory illegally and do not have a confirmed legal status. At the same time, applicants for international protection should be held in detention for the shortest time possible.

These rulings reaffirm the role of the courts as the supreme guarantor of the rights of asylum seekers at the national and European levels.