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 EU Council Directive Laying down Minimum Standards for the Reception of Asylum Seekers 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 EU Council Directive on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status 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 forcible return of irregular migrants: The Parliament and the Council adopted minimum common standards for the return of "illegally staying third-country nationals" in June 2008. The Directive, officially published in the Official Journal of the European Union on 24 December 2008, 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" (Article 15).  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 (see Article 15.5 and 15.6).
• 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'.

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)
 

THE "PACTE EUROPÉEN" ON ASYLUM AND MIGRATION

The French Presidency of the Council, to occur between July and December 2008, launched a "European pact" on asylum and migration. The goal of the pact is not to become EU law but instead to be adopted as a set of guiding principles for the EU's future policies on asylum and migration. The Pact was officially adopted by the European Council summit on 15-16 October.

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)

2005 Report of the EU Network of Independent Experts on Fundamental Rights (1.74 MB)

2005 Synthesis Report of the EU Network of Independent Experts on Fundamental Rights (970.43 KB)

The EU Network of Independent Experts on Fundamental Rights has been set up by the European Commission upon request of the European Parliament. It monitors the situation of fundamental rights in the Member States and in the Union, on the basis of the Charter of Fundamental Rights. It issues reports on the situation of fundamental rights in the Member States and in the Union, as well as opinions on specific issues related to the protection of fundamental rights in the Union.

CHARTER OF FUNDAMENTAL RIGHTS 

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.