Systematic detention of asylum seekers at the border: on the need for an individualised necessity test

By Ruben Wissing, lawyer at UNHCR and academic assistant migration law at Ghent University

In the Thimothawes judgement of 4 April 2017, the European Court of Human Rights acquits the Belgian State of the charge of having breached the right to liberty under article 5 §1 of the ECHR by systematically detaining asylum seekers at its external border at the national airport, as long as a (prima facia) vulnerability assessment has been undertaken, the duration of the detention remains reasonable and detention conditions are adequate.  Two dissenting judges however do not consider this sufficient to ensure that the detention is not arbitrary.

The Court’s judgmentMr Thimothawes is an Egyptian asylum seeker who arrived at Zaventem national airport on a flight from Turkey in February 2011 without proper entry documents.  He was refused to enter the Belgian territory and was subsequently detained, after applying for asylum at the border – a practice described by the Council of Europe’s Commissioner for Human Rights as ‘systematic’ (§41-42).  His asylum application was refused and his detention was prolonged in order to remove him.  He applied for asylum once more and presented a medical attestation concerning his mental health situation.  He was finally released five months after his arrival, because no final appeal decision had been taken on his second asylum application within two months after its introduction. He had been detained on the basis of different national legal bases and requests to be released had been refused by the competent Council Chamber and Chamber of Indictment (except for one which got overturned in appeal). Ten days before his release, the case was brought before the ECtHR by Mr Thimothawes arguing that his deprivation of liberty was arbitrary because no assessment or judicial review of its necessity had taken place, the detention circumstances were not adapted to his individual situation and less coercive means would have been more proportionate.

In its judgment, the Court first reiterates its general principle that states can restrict the right to liberty of non-nationals as part of its sovereign right to control migration on its territory on the basis of two different grounds enumerated in  Article 5 §1 f) of the ECHR: in order to refuse entry to those who lack the required authorisation, and in order to execute a removal decision for as long as a procedure is pending and handled diligently, and even if detention itself in this situation is not reasonably necessary (§58-59).

In order to be lawful, the Court resumes, any such deprivation of liberty by the state must also have a legal basis in national law, including the requirement that the relevant procedures are respected (so-called internal lawfulness). Moreover, it must also be in conformity with the Convention and its explicit and implicit general principles (external lawfulness), such as being non-arbitrary, meaning it should be executed in good faith and in an appropriate environment and conditions, linked strictly to its goal, and limited to the reasonable time period necessary to obtain that goal (§62-64).  For these requirements, no distinction is made between migration detention for purposes of removal or for avoiding irregular entry (§65).

In applying those principles to Mr Thimothawes’ specific case, the Court first states that the internal lawfulness of the detention measure is not disputed since a legal basis for the detention can be found in national law (article 74/5 of the Belgian Aliens Act).  Further, while reaffirming that also EU or international law can be a source of that national law, the Court refuses to evaluate itself the compatibility of the detention measures with the requirement of necessity under the Reception Conditions Directive – only applicable to periods of detention while asylum procedures are pending, not to the detention for the purpose of removal – because it considers application and interpretation of national law, including the implementation therein of international or EU law, to belong to the national courts’ competence alone.  The ECtHR can only verify the compatibility of a domestic court’s interpretation thereof with the Convention in a specific case, but it cannot pronounce itself on the compatibility with EU law, nor assess the legislation or practice as such, outside the limits of the pending case (§71).

The main question according to the Court is the one concerning the alleged arbitrariness of the detention.  After recalling its case law criticizing generalised or automatic detention practices of asylum seekers without individual assessment of specific vulnerabilities or feasibility of less coercive measures, including in cases where a necessity test is enshrined in national law (§73), the Court does find that in Mr Thimothawes’ case specific individual circumstances had not been taken sufficiently into consideration by the detaining administration.  The Court defines the motivation of the detention decisions as ‘laconic and stereotypical’, because they merely mentioned that detention of the asylum seeker was necessary in order to secure his eventual removal, and this does “not allow for the applicant to understand the concrete reasons justifying his detention” (§76-77).  Nevertheless, the Court concludes the detention is not arbitrary because the Belgian judiciary had been able to sufficiently execute their competence to control the detention measure, even though this competence is strictly limited to a control of the legality, since the courts seem to have respected the ECtHR jurisprudence and evaluated the applicant’s individual situation (§78).  Further, the applicant was not able to convince the Court that his particular situation should prima facie have excluded detention, since he has received psychological support in the closed centres in a manner adapted to his mental health situation, which did not demand less coercive measures, and the duration of the detention was not unreasonable, taking into account the different removal and asylum procedures Mr Thimothawes underwent (§79-80).  Thus, the Court considers that the detention measures were not arbitrary, and thus not applied in violation with article 5 §1 of the Convention.

Comment

Some important remarks could be made on the Thimothawes judgement:

Firstly, the Court quotes reports from the Council of Europe’s two consecutive Commissioners for Human Rights who both denounce the practice of the Belgian migration detaining migration administration (the Aliens Office) of systematically detaining asylum seekers at the border, because it omits to assess in an individualised manner if detention really is the last resort and no less coercive alternatives are available (§41-42).  Also, by stressing that for detention aimed at removing a person from the territory it is not required the detention measure is reasonably necessary, the Court at the same time suggests a contrario that a necessity test would be mandatory for all other detention measures (not aimed at removal, such as those detaining asylum seekers upon arrival), as a guarantee against arbitrariness (§60). It is surprising then to notice that the Court sees no problem in a continuation of the violation of these principles by the Belgian administration only because it is covered by Belgian courts (who are in fact not allowed to verify the proportionality or necessity of the detention measure – and even if in this specific case, some individualised assessment of the proportionality of the detention by the courts has taken place, it should be considered as a rather exceptionally broad use of their limited competence to only verify whether the measure has a legal basis).

The two dissenting judges Karakas and Turkovic also have come to the same conclusion and warn for a departure of its case law that demands an individual motivation of the objective necessity with respect to  each administrative detention decision (independently from the courts controlling powers) and concludes that stereotypically motivated decisions and judgements in itself violate Article 5 of the ECtHR (p. 30, al. 2).  Judge Lemmens’ concurring opinion however refers to the Grand Chamber case law (inter alia Saadi and Khlaifia) to argue that necessity is only a qualification of the reasonableness of the detention duration (which should not be longer than reasonably necessary to achieve the pursued goal) (Opinion §2).  He accepts that the interpretation of the Grand Chamber is stricter on this aspect than the UN Human Rights Committee and the EU Reception Conditions Directive which require an individual assessment of the necessity of the detention in order for it not to be arbitrary, but at the same time he beliefs this is sufficiently compensated by more recent case law of some chambers that demand an individual vulnerability assessment (Opinion §6-7).

Secondly, the requirement by the Court in this judgement for an asylum seeker to proof his particular vulnerability seems to be somewhat contradictory with its own case-law where it clearly accepts all asylum-seekers to be particularly vulnerable (e.g. M.S.S. judgement, C-30696/09, 21 January 2011, §251).  Simultaneously, the Court also seems to have reversed the burden of proof by, instead of demanding the detaining state to argue why less coercive measures could not be effective in an individual case, expecting the asylum seeker himself to proof why a less coercive measure would be more adapted to his individual situation.

Lastly, it is remarkable that the very restricted competence of the Belgian Council Chambers and Chambers of Indictment to only verify the internal lawfulness (legality, legal basis) of the administrative detention decision – and thus not its proportionality, necessity or reasonableness (in Belgian practice covered by the term ‘opportunity’ control) – has not kept the Court from accepting the effectiveness of the judicial review of the detention measures and its compatibility with the Court’s jurisprudence (§78).  Even if the courts in this case might have gone a little further in their review than they usually do in Belgium, after all, it also appears from the facts of this specific case that they have not really evaluated the necessity, nor the proportionality of the detention decision – explicitly excluding its competence to evaluate the ‘opportunity’ of such decisions – that they accepted the refusal of entry to be a sufficient reason to detain a person pending his asylum procedure, and that they criticized the applicant himself for not having provided sufficient proof of the practice of systematic detention at the border (while referring to the HR Commissioners report on exactly this issue) (§25 & 28).

Systematic detention of asylum-seekers has gotten somewhat of a clearance by this Strasbourg judgement as long as access to national courts for judicial review is guaranteed and its duration stays reasonable.  However the Court could have demanded a more qualitative individual assessment of the necessity (last resort, less coercive measures) by the administrative authority itself (Aliens Office), in order to stop its border detention policy from being an arbitrary practice.  Maybe, given the fact that three out of the seven judges have made side remarks on the reasoning and conclusions of the judgement, the Grand Chamber should take this opportunity to pronounce itself more clearly on exactly these issues.