Freedom, Asylum Seekers, and Two Lots of European Human Rights – Michael Rhimes

European-Union-Flag_1C-601/15 JN (in French only) offers important insights into the detention of asylum seekers. It also somewhat of a double bill, involving not one but two sets of European Human Rights.

In this post I will set out the facts, give a quick refresher of the relationship between the European Convention on Human Rights (ECHR) and the Charter of Fundamental Rights of the European Union (Charter). I will conclude with an overview of the decision itself.

The decision contains a number of important elements, but the one I would like to focus on is the fit between the ECHR and the Charter. This manifests itself on two levels. The first is the abstract relationship between the ECHR and the Charter (see Marina Wheelers recent post on this: A Charter too Far). This is quite straightforward (see below). The more interesting part is the relation between the different ways the ECHR and the Charter protect from unlawful detention. As shall be seen, the former lists narrow criteria for the lawfulness of detention, whereas the second effectively provides a broad protection against unlawful detention. Reconciling the two was at the heart of JN.

Factual and legal background

JN, a third country national, had made a number of asylum claims in the Netherlands. He frequently ran into trouble with the authorities. He had been convicted of a wide range of petty offences, mostly theft.

In January 2014, he was the subject of a ten-year entry ban coupled with a return decision. In other words, he was required to leave the Netherlands and not come back for ten years. Although JN did not leave, the fact that he was required to leave the Netherlands is significant.

The ten-year entry ban was a drastic measure. In principle, Art 11(2) of Directive 2008/115, states an entry ban cannot be imposed for periods in excess of five years, save in the case of serious threat to public policy, public security or national security.

After conviction for theft in the Netherlands in February 2015, he made yet another asylum application while in detention for that offence. But his mental health prevented him from being heard in the asylum application, and it therefore had to be postponed until after he was due to be released from prison. When he was convicted of another separate count of theft in June 2015, his health had still not improved enough to process the asylum claim. When the three-month sentence imposed for the theft in June 2015 came to an end in September, he was detained on the basis of an EU law provision (the Provision) that allowed for the detention of asylum seekers pending the determination of their application on the basis of national security or public order.

Turning now to the relevant legal framework, pending the determination of the asylum claim, Directive 2013/32 provides for a right to remain in the relevant Member State subject to exceptions (Art 9, Art 41). In addition, per Art 8(3)(e) of Directive 2013/33 (the Provision), it is possible to detain an asylum seeker during that period, when protection of national security or public order so requires. JN was detained under this Provision and it forms the focus of JN.

JN challenged the validity of the Provision before the Court of Justice of the European Union. He argued that the broad head of detention in the Provision was inconsistent with Article 5 of the ECHR, and by that token, inconsistent with the Charter. I will look at the precise interrelation between the ECHR and the Charter in the next section.

Article 5 provides an exhaustive list of specific grounds for the lawfulness of detention:

Article 5 Right to liberty and security

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

() (f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

This is in direct contrast to Art 6 of the Charter, which simply contains a general right to liberty and security. It reads as follows:-

Article 6

Right to liberty and security

Everyone has the right to liberty and security of person.

Many other fundamental rights documents also adopt the Charter approach, offering a broad right to liberty and/or imposing a general injunction against arbitrary detention (here, Art 6 and here, Arts 7 and 9). This raises very interesting questions of compatibility between these broad protections and the narrow bases of detention in Art 5 see here for an example of where the fit between the two was addressed.

More specifically, it was argued that the detention did not seek to prevent, per Art 5(1)(f), an unlawful entry (given that JN had a right to remain in the Netherlands pending his asylum claim) nor was it effected with a view to deportation or extradition (given the breadth of the Provision which focuses on public order, and the fact that JN was applying for asylum in the Netherlands which would necessarily avoid deportation and extradition).

The relationship between EU law and the ECHR

The EU is not party to the ECHR, and the latter cannot bind it (see Article 1 and Art 46(1) ECHR). An EU act could not therefore be challenged before the ECtHR.

However, the Charter, in Article 52, states that where there is a right in the Charter which corresponds to a right in the ECHR, the meaning and scope of the right will be the same as that in the ECHR, although the Charter may provide more extensive protection than the ECHR. In other words, the EU law provides at least equivalent protection as the ECHR although it may provide more (as may have been in the joined cases of C-293/12 and C-594/12 Digital Rights Ireland, depending on how the CJEU answers the Court of Appeals preliminary reference [2015] EWCA Civ 1185)

Furthermore, in light of Art 6(3) of the Treaty on the European Union, the fundamental rights guaranteed in the ECHR are to be considered general principles of the Unions law.

Together, therefore, although the ECHR does not bind the EU, its provisions and associated jurisprudence form an amalgam of norms against which the legality of EU measures and acts are assessed. If the Provision could not be read harmoniously with Art 5(1)(f), then it would have to be struck down.

A neat illustration of the equivalence between the ECHR and the Charter can be found in Benkharbouche [2015] EWCA Civ 33 (See UKHRB comment here). The Court of Appeal concluded that the State Immunities Act 1972 allowed for immunities from legal proceedings in a manner inconsistent with the right to access the courts provided in Article 6 of the ECHR. This was a lengthy and complex analysis, spanning 56 paragraphs. Determining that the Charter was infringed was then a simple conclusion to which one paragraph was dedicated given that the Charter provides at least equivalent protection to the ECHR, the Charter, too, must find the relevant provisions of the Act inconsistent with the right to a fair trial.

The Courts decision in NJ

The CJEU adopted its typically structured assessment of the legality of the Provision, examining whether a) the limitation was laid down in law, b) whether the Provision respected the essential content of the right and c) whether the restriction was proportionate in the sense that it was necessary and effective in response to generally recognised aims of the Union.

The first part of the test was clearly satisfied, as the Provision was a legislative measure of the EU itself. The court also held that the essential content of the right to liberty was respected, pointing to Art 8(1) and Art 8(2) which exclude detention on the sole basis a person is applying for international protection and sanction detention only in exceptional circumstances where no less coercive measure would have been available.

Turning to proportionality, the court noted that national security and public order are aims recognised by the Union. Moreover, it observed that the detention of an individual is by its very nature is designed to protect the public from his or her harm.

The wording and the context of Art 8(3)(e) ensured that detention was conditional upon the respect of a range of conditions whose objective was to tightly circumscribe the instances in which an asylum seeker could be detained. Four such restrictions within the scheme of the Directive were highlighted:

First, the public order or national security must require the detention. As per C-554/13 ZH and O this is not a trifling requirement. It requires more than the disruption of social order inherent in any violation of the law. To meet the condition, the Member State must demonstrate that a) there exists a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society and b) which requires the detention of a given individual. This requires an individualized assessment in each and every case of the threat posed by the asylum seeker in question.Second, the Directive requires the individual heads of detention to be transposed into national law. In so doing, Member States are required to ensure that their domestic provisions do not conflict with the general principles of EU law. The Provision is thus presumed to operate within a national context, and thus be supplemented by the national guarantees that surround the imposition of a period of detention. This reduces, again, the breadth of Art 8(3)(e) and ensures that detention remains a measure of last resort and where strictly required.As above, Art 8(1) and Art 8(2) provide further restrictions on the scope for detaining an asylum seeker. In a similar vein, Art 9 requires, inter alia, the shortest possible period of detention and provides a wide range of procedural guarantees.The legislative history (here) shows that the Provision was drawn from the Council of Europe recommendation on the detention of asylum seekers (see [3]) and on the principles of the United National High Commissioner for Refugees (UNHCR) for the detention of the same (see 4.1.3). Both of these documents stress the exceptional nature of detention, and both explicitly contemplate that detention on the basis of public order would be consistent with international law.

On the facts of the case, having regard to the nature of the offences committed and the imposition of a draconian entry ban, the court suggested that the detention was lawful. Moreover, detention under the Provision was entirely consistent with an asylum seekers right to remain on the territory of a Member State pending the determination of his or her application.

So far, so good. The above analysis constitutes a fairly standard proportionality assessment. The requirements of necessity and ensuring adequate procedural guarantees, resemble quite closely the requirements that the ECtHR would insist on (see here [67] [74]). However, the more difficult question remains, and that is how detention on the broad grounds of public order could fit within the relative straightjacket of Art 5(1)(f) which contemplates detention only with a view to effecting deportation or extradition.

Part of the solution has been provided above. The Provision is not actually that broad. When seen in the context of the overall scheme of the Directive, it is a more narrow Provision which requires a clear public threat, compliance with the general principles of EU law, strict necessity, is buttressed with clear procedural guarantees, and chimes with generally recognized international standards. But, again, this is only part of the solution. Although narrow, how can JN be described to have been detained with a view to deportation?

The position was complicated by the fact that Dutch law provided for the invalidation of a return decision when that individual made an asylum application. The court held that this was inconsistent with the Member States obligation of sincere co-operation (Art 4(3) TEU). Such a rule would frustrate one of the purposes of Directive 2008/115, expressed in recital 2 as being the establishment of an effective removal and repatriation policy. To require the proceedings for the return decision to be commenced afresh after the rejection of the application for asylum, rather than simply be resumed when the application was denied, was inconsistent with the Directive. Thus, the court was able to conclude that, even when JN had the right to remain in the Netherlands pending the determination of his asylum application, the return decision was still effective. The detention could be said to have been effected with a view to deportation within Art 5(1)(f) on the basis that, if the application were unsuccessful, he would still be legally required to leave the Netherlands as the return decision would be revived

The court then bolstered its assessment by reference to Nabil v Hungary where the ECtHR found that the applicants detention under the Provision had been unlawful. Like JN, the applicant was also subject to an entry ban and a return decision. The crucial part of the judgment is the point that

The pending asylum case does not as such imply that the detention was no longer with a view to deportation since an eventual dismissal of the asylum applications could have opened the way to the execution of the deportation orders. The detention nevertheless had to be in compliance with the national law and free of arbitrariness. [38].

Accordingly, JNs detention was not necessarily outside Art 5(1)(f). It could still be considered to be with a view to deportation because if the asylum application were rejected, then the return decision would come into effect. In this way, the Provision was found to fit within the ECHR.

By way of footnote, I add that on the facts of Nabil, the violation stemmed from the failure to respect national law. The domestic courts had failed to examine properly whether, inter alia, that alternative, less stringent measures than detention were not applicable, as the domestic legislation required them to do.


Three points are worth noting.

First, it is clear that an important aspect of asylum procedure has been clarified. In explaining the context of Art 8 of the Directive, the court made it clear that the Provision cannot be used as a wide-ranging basis for detaining a bunch of migrants with a vague nod to public order concerns. The Provision requires strict necessity, a clear and pressing public order justification, and an individualized assessment of each and every detainees circumstances.

Second, I nonetheless think an element of the ECHR jurisprudence has been underplayed in JN. There is a clear requirement of a close connection between the detention and the aim of deportation (here at [164], Nabil at [34]). There must therefore be a close connection between the detention of an asylum seeker and the ultimate aim of deporting individual as per the return decision. How close, however, is close? Do we say, in every case, that the requirement of closeness has been satisfied because the individual might ultimately be returned (i.e. if his or her asylum application is unsuccessful)? Such a general assumption seems to be inconsistent with the case-by-case assessment that human rights jurisprudence generally emphasizes. If a contrary view were taken, would it not require the courts to consider whether it is likely that the asylum application is going to be granted (i.e. such that the detention will probably not be effected with a view to deportation as the applicant will probably be a protected refugee and remain in the Member State)?

Third, as the case determined the legality of JNs detention, time was of the essence. It would be easy to gloss over the speed with which the Grand Chamber was able to determine the case, using the PPU (from the French procdure prjudicielle durgence) procedure in Art 107 of the Rules. Whereas a preliminary reference took roughly 15 months to determine in 2014 (the most recent year for which statistics are available), JNs case was heard within 90 days of the reference, with judgment handed down less than three weeks after the oral hearing. This is good news for the efficacy of the PPU procedure.

Michael Rhimes is currently a stagiaire at the Cabinet of Judge Vajda at the Court of Justice of the European Union. Although Judge Vajda sat on the case of JN, the views and errors expressed in this piece are the authors own.

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