Detention of migrants from outside the EU/EFTA: how do countries apply EU directives?

The legal grounds for detaining migrants from non-EU/EFTA countries* (third countries) during asylum, return, or transfer procedures are set out in three separate EU Directives. Most countries have incorporated this three-part approach into their national legislation. Whether detention can continue if the situation of the migrant concerned changes, varies from country to country.

> Read the compilation of responses from 24 EU Member States and a EMN Observer Country** to the information request (ad-hoc query)*** of EMN Netherlands 

National application of EU directives

Three European directives provide the legal basis for the detention of migrants from outside the EU/EFTA in different situations:

• Article 8 of the Reception Conditions Directive sets out the conditions for the detention of a migrant applying for asylum (2008/115 EU);
• Article 15 of the Return Directive concerns detention within return procedures (2013/33 EU);
• Article 28 of the Dublin Regulation concerns detention in transfer situations (EU 604/2013 EU).

The three grounds mentioned above are also applied by the Netherlands and almost all other EU Member States (BE, BG, CY, CZ, DE, EE, FI, FR, IT, HR, LV, LT, LU, MT, AU, PL, PT, SK, SI, SE) as separate legal grounds in national legislation. Other countries (HU, ES; RS) do so for some of the grounds, with Spain applying only the detention grounds from the Return Directive. Hungary also applies asylum detention in transfer situations (Dublin) and therefore has two detention laws for the three grounds. The Dublin Regulation does not apply to Serbia, as it only applies to EU Member States.

What if the situation changes?

The legal basis for detention can change, for example if the situation shifts from the asylum procedure to the return procedure. In the Netherlands and most other countries (BE, BG, CY, CZ, EE, ES, DE, HU, HR, IT, LV, LT, LU, MT, PL, PT, SK, SI; RS), the detention decision in such situation must be terminated and a new decision must then be taken for detention, based on the changed legal grounds. 

Whether the detainee is (temporarily) released in the intervening period varies from country to country. In 12 countries (AT, BE, CY, CZ, FI, HR, IT, LU, MT, NL, RS, SE), it is possible to continue detention pending the new decision. In 11 countries (BG, EE, FR, DE, HU, LV, LT, PT, SK, SI, ES), this is not possible. In Poland, detention can only be continued if the migrant concerned is in the return procedure and has submitted a request for international protection while staying in the detention center.

*EFTA: European Free Trade Association (EFTA), best known by its English acronym EFTA. Countries: Norway, Iceland, Liechtenstein, Switzerland

**Participating countries: Belgium (BE), Bulgaria (BG), Germany (DE), Cyprus (CY), Estonia (EE), Finland (FI), France (FR), Hungary (HU), Italy (IT), Croatia (HR), Latvia (LV), Lithuania (LT), Luxembourg (LU), Malta (MT), Netherlands (NL), Austria (AU), Poland (PL), Portugal (PT), Slovakia (SK), Slovenia (SI), Spain (ES), Czech Republic (CZ), Sweden (SE); Serbia (RS)

***An information request (ad-hoc query/AHQ) is an EMN tool for gathering information on migration and asylum policies in EU Member States and EMN observer countries.