The European Parliament, the Council and the Commission are entering a decisive stage in the negotiations on the Commission proposals recasting the Directive laying down standards for the reception of asylum seekers and the Dublin Regulation. An important part of these proposals deals with the detention of asylum seekers during the examination of their asylum application and during Dublin procedures and includes provisions with regard to grounds of detention, procedural safeguards, detention conditions and detention of vulnerable asylum seekers, including children.

The importance of this standard-setting exercise at EU level cannot be overstated also in light of its likely repercussions on detention practices in other regions of the world. Today, 166 organisations call on the EU institutions to seize this opportunity to adopt standards that fully endorse the presumption against detention of asylum seekers and protect asylum seekers from arbitrary detention as required under international refugee and human rights law. The protections afforded by international refugee and human rights law presuppose that, as a general rule, asylum seekers should not be detained and that detention may only be used in exceptional cases, and only with full procedural safeguards in place. The latter must, in particular, reflect the standard laid down in Article 52(1) of the Charter of Fundamental Rights of the European Union providing that any limitation on the exercise of the rights guaranteed by the Charter, including the right to liberty under Article 6, must be necessary and subject to the principle of proportionality. Article 52(3) of the EU Charter of Fundamental Rights also explicitly allows for Union law to include more extensive protection than guaranteed under the European Convention on Human Rights.

In order to ensure that EU asylum legislation properly reflects these important principles, we1 call on the EU institutions to refer to the ‘negotiating checklist’ below representing the essential safeguards on detention of asylum seekers which as a minimum must be upheld in the recast EU Reception Conditions Directive and the recast Dublin Regulation:

• A person shall not be detained for the sole reason that he/she is an asylum seeker. Seeking asylum is not an unlawful act and asylum seekers should not be penalised for irregular entry in line with Article 31 of the 1951 Refugee Convention.

• Asylum seekers may only be detained as a measure of last resort and, if considered necessary in the individual case, and only if alternatives to detention cannot be applied effectively. Alternatives to detention must be laid down in national law. In the exceptional case that detention is considered necessary it shall always be for the shortest possible period.

To read the full statement, please see the pdf below.

ST: Not crossing red lines. A negotiators checklist on minimum detention safeguards (187.26 KB)