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Detention of Asylum Seekers and Irregular Migrants and the Rule of Law

In its decision of 16 November 2015, the ELI Council accepted the project proposal as a project to be carried out under the auspices of the ELI, subject to the accelerated procedure. The Project Team chaired by Boštjan Zalar, Senior High Court Judge of the Administrative Court of the Republic of Slovenia and Vice-President of the European Chapter of the International Association of Refugee Law Judges, will produce an ELI Statement by autumn 2016.

You can download the brochure here.

Background information

The rule of law has always been high on the EU legislator’s agenda, while specifically in the field of migration, the Commission adopted the European Agenda on Migration (COM(2015) 240 final) in May 2015. This agenda sets several policy tools for immediate actions in order to protect those in need. The sources of EU secondary law (Reception Conditions Directive 2013/33/EU, Return Directive 2008/115/EC and Dublin III Regulation) in the same field provide the rules on detention of asylum seekers and third country nationals (TCN).

Both the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) have developed extensive case law with regard to detention of TCN and asylum seekers. Numerous principles established therein and the norms offered by the EU legislation in place, may pose a challenge to the harmonised application of common standards in detention cases for the national judges across the EU Member States.

The ELI's project will focus on identifying all due process standards and material law including conditions for detention, and on enhancing the implementation of existing EU law in this field.

Outline of the project

The project will be carried out in three stages. During the first stage, the Project Team will identify and compile all due process standards and material law on detention from the relevant sources of EU law and case-law of the ECtHR and the CJEU. The compilation will include special positions and safeguards for children and other vulnerable persons and eventual differences in due process standards between EU law (including case-law of the CJEU) and case-law of the ECtHR.

Within the second phase, the members of the Project Team will identify challenges and problems that judges may face when applying the selected due process standards and material law including conditions on detention in conjunction with the relevant case-law of the ECtHR. As a result of this analysis and at the end of the second stage, the Project Team will develop a user-friendly check-list with indications and recommendations on how to apply those standards in an integrated manner. The results of the two first stages will be presented and discussed at the end of 2016.

During the third, last stage of the project, the final product will be disseminated among judges of the EU Member States dealing with detention cases.

Project’s objectives

The project aims to contribute to an effective implementation of due process standards and material conditions for detention based on an integrated approach in respect of EU secondary law, case-law of the CJEU and case-law of the ECtHR in judicial practices of the Member States (first indent of Article 3(2) of the Association).