In J.N. the Court of Justice (ECJ) ruled that the provision in the recast Reception Conditions Directive allowing for the detention of asylum seekers on public order grounds does not conflict with the way in which the Charter of Fundamental Rights protects the right to personal liberty. The judgment raises pertinent questions about the relationship between the EU legal order and that of the ECHR in an area that is becoming increasingly complex: the use of detention in immigration and asylum procedures. The ECJ, by focusing on the specifics of the case in its judgment, manages to evade an interpretation that outright conflicts with the ECHR in this particular case. Nevertheless, by concluding that consideration of the the provision in question “has disclosed no factor of such a kind as to affect the validity of that provision in the light of Articles 6 and 52(1) and (3) of the Charter of Fundamental Rights of the European Union,” the ECJ suggests that this provision in general raises no issues as regards its compatibility with the right to personal liberty. However, the reasoning of the ECJ sits uneasily with the case law of the ECtHR, in particular in those parts of the judgment where the ECJ addresses the balance that may be struck between the right to liberty of asylum seekers and requirements relating to the protection of national security and public order.
The preliminary questions posed by the Dutch Council of State found its origins in the case of Mr. N, a third-country national who entered the Netherlands in 1995. During the period from 1999 until 2014, Mr. N. was convicted for 21 offences, mostly theft-related. He received sentences that varied from fines to prison sentences of three months. In the period from 1995 until 2013, he applied for asylum three times – twice his applications were rejected, and once he withdrew it himself. In 2014 he was served with a return decision, in accordance with Article 6 of the Return Directive (RD). At the same time, he was also issued with an entry ban of ten years in accordance with Article 11 RD, because the authorities regarded his behavior as representing a serious threat to public order.
Then, in 2015, while carrying out a prison sentence for theft and violation of the said entry ban, Mr. N. applied for asylum a fourth time. During the asylum procedure, the authorities ordered his detention because he allegedly constituted a danger to public order. This detention was based on a national provision that implemented Article 8 paragraph 3 (e) of the recast Reception Conditions Directive (hereafter recast RCD). Article 8 recast RCD regulates the detention of asylum seekers, and it allows that Member States to detain an applicant for asylum if that is necessary, and if other, less coercive measures cannot be applied. In paragraph 3 of Article 8, an exhaustive list of the grounds for detention of asylum seekers is provided. One of these grounds, the one under subparagraph e, allows for such detention “when protection of national security or public order so requires.”
In his appeal against the detention, Mr. N. brought forward the argument that this measure was in violation of Article 5 paragraph 1(f) second limb of the ECHR. Article 5 ECHR guarantees the right to personal liberty, and it contains a limited number of circumstances allowing for the lawful deprivation of liberty of individuals. One of them, under paragraph 1 (f), consists in the use of detention in the immigration context when that measure may be used to “to prevent [the] effecting [of] an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” In Dutch law, the circumstance that a third-country national applies for asylum results in an automatic lapse of the previously taken return decision. After rejecting the application for asylum, the Dutch authorities thus have to take a new return decision. Accordingly, seeing that Mr. N., during the examination of his application for asylum, could not be seen as a person against whom action was taken with a view to deportation, Mr. N. argued that his detention raised an issue with regard to its compatibility with Article 5 ECHR.
The Dutch Council of State shared these concerns. In its reference it considered case law of the ECtHR in which that court found a violation of Article 5, because a measure of detention pending asylum proceedings could not have been undertaken for the purposes of deportation, given that national law did not allow for deportation pending a decision on asylum. In the framing of its preliminary question, it referred explicitly to the judgment by the ECtHR in Nabil v Hungary. In that case, the ECtHR ruled that the detention of asylum seekers with a view to deportation is allowed only if “the deportation is in progress and there is a true prospect of executing it” (para. 38). According to the ECtHR, a pending asylum case as such does not imply that the detention is no longer ‘with a view to deportation’ because an eventual dismissal of the asylum application may open up the way to the execution of previously taken deportation orders.
However, seeing that both national law and ECHRprohibit the deportation of an asylum seeker pending the asylum procedure, the Council of State was unsure about the compatibility of Article 8 paragraph 3 (e) recast RCD with Article 5 paragraph 1(f) ECtHR. It conceded that the situation might be different in the situation that a return decision had been issued before the application for asylum is filed. In that case, the Council of State considered that removal in the context of the RD could possibly be seen as being temporarily suspended during the examination of the application for asylum, and as such there would no conflict with Article 5 paragraph 1(f) ECHR.
The Council of State thus asked the ECJ to rule on the validity of Article 8 paragraph 3(e) recast RCD in the light of Articles 6 and 52 of the Charter, taking into account that the rights laid down in Article 6 of the Charter correspond to those guaranteed by Article 5 of the ECHR, and that the limitations which may legitimately be imposed on the exercise of the rights laid down in Article 6 of the Charter may not exceed those permitted by the ECHR.
The ECJ answers this question in five succinct steps. Its first step (paras 45-48), presented as a preliminary point, consists in recalling that the ECHR does not constitute a legal instrument that has been formally incorporated into EU law. It points out that an examination of the validity of Article 8 para 1( e) recast RCD must therefore be undertaken solely in the light of the fundamental rights guaranteed by the Charter. However, the ECJ also underlines that the rights laid down in Article 6 of the Charter correspond to those guaranteed by Article 5 of the ECHR and that the limitations which may legitimately be imposed on the exercise of the rights laid down in Article 6 of the Charter may not exceed those permitted by the ECHR.
In the second step of its reasoning (paras 49-63), the ECJ turns to the question as to how the limitation on the right to liberty as provided by Article 8 para 1 under e recast RCD relates to the Charter in a general sense. Note that in this step of its argumentation it does not yet pay attention to Article 5 ECHR and the case law of the ECtHR. Article 8 paragraph 3 under e recast RCD, allowing for the detention of asylum seekers for reasons of public order or national security, provides for a limitation on the right to liberty as protected by Article 6 Charter. Such a limitation, according to Article 52 Charter, must be provided for by law, and respect the essence of the right in question. In addition, these limitations should observe the principle of proportionality, be necessary, and genuinely meet objectives of general interest recognized by the EU, or serve the protection of the rights and freedoms of others. The ECJ considers the legality requirement satisfied, since the limitation derives from a directive. Furthermore, it regards the objectives pursued by the provision in question – the protection of national security and public order – as objectives of general interest recognized by the EU that also contribute to the protection of the rights and freedoms of others.
Moreover, according to the ECJ, the detention of an applicant for international protection is by its very nature an appropriate measure for protecting the public from the threat that the conduct of this person represents. The strictly circumscribed framework that the recast RCD lays down for the use of detention serves to guarantee that such a measure must not go beyond that which is strictly necessary, as required by the Charter. Thus, the recast RCD requires that the grounds for detention have to been provided for in national law, and that the use of detention is only permitted when necessary, after an individual assessment of the case, if other less coercive measure cannot be applied. The ECJ also recalls that the recast RCD obliges Member States to provide rules about alternatives to detention in their national law, and it calls attention to the procedural safeguards that it provides in the context of detention. Lastly, it points out that the contested provision is based upon a permissible ground for detention as put forward by both the UNHCR and the Committee of Ministers of the Council of Europe.
As a third step (paras 64-73), the ECJ further teases out the compatibility of the contested provision with the principle that restrictions on the right to liberty must not go beyond what is strictly necessary, by focusing on the strict interpretation of the concept of national security and public order required by EU law. It refers to its own case law on that concept under the Citizenship Directive (2004/38) and the RD, in order to underline that placing an asylum seeker in detention on the basis of Article 8 paragraph 3( e) is allowed only if “the applicant’s individual conduct represents a genuine, present and sufficiently serious threat, affecting a fundamental interest of society or the internal or external security of the Member State concerned.” It points out that the reasons justifying the adoption of an entry ban for more than five years under Article 11 of the RD may serve to justify detention on the grounds of public order under the recast RCD. Nonetheless, it emphasizes that the principle of proportionality should be respected when ordering the detention in any case.
In the fourth step of its reasoning (paras 75 and 76), the ECJ turns to the way in which Dutch law regulates the consequences of an application for asylum for a return procedure opened under the RD. It stresses the principle of effectiveness and points out that such a return procedure should not be simply terminated as a result of an application for asylum, and started afresh after the application had been rejected in first instance. Instead, in that case the removal procedure should be “resumed at the stage at which it was interrupted” (para 75). This is required by the duty of sincere cooperation by the Member States and by an effective removal policy, which implies an obligation of Member States to carry out the removal as soon as possible, as the ECJ has ruled in earlier case law.
The fifth and last step (paras 77-81), in which the ECJ considers how Article 8 paragraph 3 (e) recast RCD relates to Article 5 paragraph 1(f ) ECHR then comes as no surprise: the ECJ recalls that this provision permits the lawful detention of a person against whom action is being taken with a view to deportation. It refers to the judgment of the ECtHR in Nabil v. Hungary in order to argue that Article 5 paragraph 1(f) ECHR does not prohibit the detention of an asylum seeker in respect of whom “a return decision accompanied by an entry ban was adopted prior to the lodging of an application for international protection” (para 78). According to the ECJ, the Union legislature, in adopting the contested provision, did not disregard the protection offered by Article 5 the ECHR, and the ECJ concludes that consideration of Article 8 paragraph 3(e) has disclosed no factors affecting its validity in the light of Articles 6 and 52 of the Charter.
Some critical remarks can be made in response to the ruling in J.N. Instead of targeting what the Judgment says, these remarks are rather directed at the things that the ECJ left unsaid. Indeed, the outcome of the reasoning by the ECJ is technically correct in this particular case, mainly on account of its ingenious turn to the effectiveness requirement incorporated in the RD. EU law now requires that in cases comparable to the one of Mr. N., Member States must merely suspend the return procedure, instead of end it. However, the ECJ has not addressed at all how the detention of asylum seekers on the grounds of public order relates to Article 5 ECHR in those cases that no previous return decision or removal order has been taken. In that case, the detention cannot be said to be undertaken with an eye to removal as required by Article 5 paragraph 1(f) ECHR. A similar situation may arise in the case that removal is not possible, for example because there would be a real risk of violation of Article 3 ECHR.
As a matter of fact, in A. and others v the UK, the Strasbourg follow-up to the British Belmarsh detainees case, the ECtHR has explicitly held that when deportation is not possible, preventive detention on security grounds is not allowed under Article 5 paragraph 1(f):
“The Court does not accept the Government’s argument that Article 5 § 1 permits a balance to be struck between the individual’s right to liberty and the State’s interest in protecting its population from terrorist threat. This argument is inconsistent not only with the Court’s jurisprudence under sub-paragraph (f) but also with the principle that paragraphs (a) to (f) amount to an exhaustive list of exceptions and that only a narrow interpretation of these exceptions is compatible with the aims of Article 5. If detention does not fit within the confines of the paragraphs as interpreted by the Court, it cannot be made to fit by an appeal to the need to balance the interests of the State against those of the detainee.”
I was struck by the way in which the ECJ seems to disregard this crucial limitation on Member States’ use of detention for purely preventive purposes, also in a more general sense. This becomes apparent in the paragraphs of the judgment in which the ECJ assesses the conformity of the relevant provision in the Recast RCD with the right to personal liberty as guaranteed by the Charter of Fundamental Rights of the EU, where it states that “the detention of an applicant where the protection of national security or public order so requires is, by its very nature, an appropriate measure for protecting the public from the threat which the conduct of such a person represents” (para 55). This reasoning however is in direct contradiction with the ruling by the ECtHR in A and Others v. the UK. Accordingly, as soon as a Member State brings forward public order grounds in order to detain, on the basis of the recast RCD, asylum seekers against whom no previous deportation orders have been taken (and who are not subject to a border procedure), the two legal orders seem to clash, no matter how rigorously the ECJ has circumscribed the concept of public order in the other parts of its judgment, an issue that I will address more in depth below.
But before doing so, another, related but more complex issue should be addressed, concerning the operationalization of the principle of proportionality when detaining asylum seekers on public order grounds in EU law. It is accurate that the ECtHR has held that there is no requirement that the detention of someone with a view to deportation is a necessary measure, for example to prevent him from fleeing. However, it would be misleading to say that the principle of proportionality plays no role at all in its case law on immigration detention. Indeed, that principle features prominently when the ECtHR assesses the duration of the detention, which should not go beyond what is necessary for attaining the purpose served by the measure, which consists in a removal which is carried out by the required ‘due diligence’ on the part of the state. In addition, there should be a narrow connection between the detention and the specific ground relied on under Article 5 paragraph 1 ECHR. The ECJ, when analyzing the strictly circumscribed framework in which the measure of detaining asylum seekers for reasons of public order, emphasizes several times that EU law requires that the measure not to go beyond what is strictly necessary. But the requirement of necessity is operationalized solely in relation to the public order ground mentioned in Article 8 para 1 under e recast RCD. This is problematic in relation to the ECHR, because the only permitted goal under the ECHR for this kind of detention is deportation. The ECJ pays no attention to the way in which the principle of proportionality can be employed to limit the duration of detention of asylum seekers on public order grounds in any meaningful way, merely pointing out “that an applicant is to be detained only for as short a period as possible and may be kept in detention only for as long as the grounds set out in Article 8(3) are applicable” (para 62). Seeing however that general preventive detention is not permitted under the ECHR, the question whether the duration of the detention of asylum seekers is (still) proportionate can only be assessed in relation to the goal of deportation. The way in which the introduction of a public order ground for the detention of asylum seekers by the recast RCD stands in the way of a correct assessment of the relationship between means and goal – after all the core business of the principle of proportionality in constitutional adjudication – is unfortunate. It is even more regrettable that the ECJ has failed to address it in J.N.
Then a brief remark about the way in which the ECJ foregrounds the very strict and autonomous EU law interpretation of public order and national security, in order to set strict limits to the power to detain by Member States. It is well known that Member States, when appealing to these concepts in order to restrict EU law rights, are not permitted to bring forward general preventive purposes. It is doubtful that the kind of criminal behavior for which Mr. N. has been condemned by the authorities (theft and violation of the entry ban, never punished by more than a three months prison sentence) would approach the high threshold that the ECJ has set in its previous case law with regard to this concept. It is remarkable that the ECJ fails to mention anything concrete about the manner in which the Dutch authorities have appealed to this concept to justify the detention of Mr. N. Even when considering the distinction between interpretation and application of the law that the ECJ should take account of in its preliminary rulings, this lack of attention is somewhat surprising.
My last observations concern the way in which the ECJ brings together two distinct EU policy venues: the common policy on asylum which aims at “offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement” and the EU’s common immigration policy which aims at ensuring, inter alia “the prevention of, and enhanced measures to combat, illegal immigration.” The ECJ has used the rationale underlying the RD to argue that Member States should resume a previously commenced return procedure as soon as the application for asylum has been rejected in first instance. This seems to disregard the provisions in the recast Asylum Procedures Directive (recast APD) that provide applicants for asylum not only with a right to remain in the Member States during the procedure in first instance, but – with a few exceptions – also during the procedure in appeal. Moreover, by obliging Member States to carry out the removal of these persons as soon as possible, it prioritizes their legal status as illegally staying third-country nationals over that of applicants for international protection. Apart from the political and social questions that are raised by that approach, it disregards Article 5 in the recast APD which stipulates that “Member States may introduce or retain more favourable standards on procedures for granting and withdrawing international protection, insofar as those standards are compatible with this Directive.”
But perhaps more importantly, there is a striking inconsistency between the ways in which the legal instruments originating from the two distinct policy venues regulate detention. This inconsistency emerges most conspicuously when these instruments are applied to one and the same person (as would have to be done in cases comparable to Mr. N. case): as soon as the application for protection in first instance is rejected, and the removal procedure is resumed, the third-country national will be covered by the RD. In that case, any detention purely based upon public order grounds will have to cease immediately, seeing that the ECJ has unequivocally held in Kadzoev that “the possibility of detaining a person on grounds of public order and public safety cannot be based on Directive 2008/115.”
 ECtHR 7 June 2011, R.U. v. Greece, No. 2237/08, paras 88-96, and ECtHR 25 September 2012, Ahmade v. Greece, No. 50520/09, paras 142-144.
 ECtHR 22 September 2015, Nabil and Others v. Hungary, No. 62116/12, para 38.
 UNHCR, 1986, Detention of Refugees and Asylum-Seekers, EXCOM Conclusions, No. 44 (XXXVII), 13 October 1986 and Council of Europe, 2003, Recommendation Rec(2003)5 of the Committee of Ministers to member states on measures of detention of asylum seekers.
 ECtHR 19 February 2009, A and others v. United Kingdom, No. 3455/05.
 ECtHR 15 November 1996, Chahal v United Kingdom, No. 22414/93.
 See for example R.U. v Greece, para 92.
 See EHRM 29 January 2009, Saadi v UK, No. 13229/03, para 74.
 Articles 78 and 79 TFEU.
 Recast Article 9 para 1 and 46 para 5.
 Case 357/09 PPU, Kadzoev, 30 November 2009, para 70. It is noteworthy that the AG seems to be unaware of this important limitation on the power to detain. See Sharpston’s opinion in J.N., para 73.