M.B., a Syrian national arrived in the Netherlands in October 2015 and requested asylum. He was arrested on suspicion of participation in a terrorist organisation and he was placed in pre-trial detention. The applicant was convicted to 10 months’ detention and he was released in September 2016, but placed in immigration detention in Rotterdam pending the examination of his asylum application on the ground that he posed a threat to public order.

Before the ECtHR, the applicant complained under Article 5(1)(f) (detention of a person to prevent his effecting an unauthorised entry into the country) of the European Convention on Human Rights, claiming that the detention pending the examination of his asylum application was unlawful and arbitrary.

The court highlighted the general principles regarding detention under Article 5(1)(f), citing the judgments of Saadi and Suso Musa. It noted that states have a sovereign right to control aliens’ entry and residence in their country and that they are permitted under Article 5(1)(f), as an exception to the general rule under Article 5(1) that everyone has the right to liberty, to detain a person who has applied for permission to enter, whether by requesting asylum or not. The court further highlighted that a legal provision that allowed asylum applicants to enter or remain in the territory pending a final decision on their application “did not necessarily require that an individual be granted formal authorisation to stay or to enter the territory, as it might well be that the provision in question was simply intended to reflect international standards to the effect that an asylum-seeker could not be expelled pending the assessment of an asylum claim.”

The court also noted that in order to be lawful, detention under Article 5(1)(f) should not be arbitrary, must be carried out in good faith, must be closely connected to the purpose of preventing unauthorised entry of the person to the country. Furthermore, the place and conditions of detention should be appropriate, considering that the measure is applicable to people fearing for their lives, who have fled from their own country. Finally, the court noted that the length of the detention should not exceed what is reasonably required for the purpose pursued.

On the facts of the case, the court concluded that there was a violation of Article 5(1)(f) as the decision to order the applicant’s immigration detention was not lawful. 

The court noted that Article 5(1)(f) allows the detention of an asylum applicant or other immigrant until the State has granted that person authorisation to enter and that it is de jure entry, not de facto entry, which is relevant. It then looked at Article 9(1) of the recast Asylum Procedures Directive which states that the right to remain on the territory of a State pending the outcome of an asylum application, cannot be equated to an entitlement to a residence permit. The court noted that this article was implemented in Dutch national law through Article 8(f) of the Aliens Act 2000, which provides that an asylum applicant shall not be expelled pending the assessment of the asylum application and does not provide for any formal authorisation procedure in respect of rights of entry or residence, meaning that lawful detention of such a person is permitted under Article 5(1)(f). The court thus concluded that the detention of the applicant had a legal basis (also with reference to Section 59b(1)(d) of the Aliens Act 2000 which transposed Article 8(3)(e) of the recast Reception Conditions Directive) and was within the scope of Article 5(1)(f) to prevent an unauthorised entry.

The court then proceeded to examine if detention was arbitrary. It noted that the applicant did not argue that the conditions of detention were inappropriate or that the length of detention was unreasonable or that detention was not carried out in good faith.

The court thus examined the remaining point, whether there was a sufficiently close connection between the immigration detention and the purpose of preventing unauthorised entry.

The ECtHR noted that Section 59b(1)(d) of the Aliens Act 2000 which transposed Article 8(3)(e) of the recast Reception Conditions Directive provides for detention in case of a threat to public order or national security. It further observed that although Article 8(3)(e) of the recast Reception Conditions Directive allows detention on the grounds of national security or protection of public order, by contrast Article 5(1)(f) of the ECHR only allows immigration detention to prevent unauthorised entry or for deportation.

The court noted that it has previously examined the justification of immigration detention on public order grounds under the second limb of Article 5(1)(f), for the aim of deportation, and it held that detention based on public order grounds, while no removal proceedings were actively ongoing, was considered arbitrary. The court further highlighted that while it could understand legitimate concerns that would exist when an asylum applicant is released from detention following a conviction for terrorism, preventive detention cannot be the consequence and it does not absolve a state to follow its obligations. The court also noted that while the applicant was in pre-trial detention, there were no steps taken to examine his asylum application and to possibly exclude him from international protection based on Article 1F of the Refugee Convention but the interviews took place only when the applicant was in immigration detention.

The court concluded that the immigration detention appeared disproportionate and unnecessary to enable the examination of his asylum claim, and it lacked the close connection between detention and the aim of preventing unauthorised entry. The court further noted that accepting such a situation would be to expand the Convention grounds to justify the deprivation of liberty of asylum applicants and other immigrants.