A Turkish national submitted a subsequent application for international protection while he was in detention pending deportation following a first rejected asylum application.

The applicant arrived in Czechia in October 2023 and was detained for the purposes of expulsion and then applied for asylum. His detention grounds were changed, and the duration was set until April 2024. His application was rejected, and he lost the status of asylum applicant in August 2024, so that he was granted 30 days for voluntary return. After one month and a half he requested a residence permit for the purposes of marriage, but he was detained by the Police, then under the Residence Act for Foreigners for a period of 90 days. In the detention unit, he reapplied for international protection and the Ministry of the Interior re-detained him under the Asylum Law, Article 46a(1)(e) of Act No. 325/1999 Coll. In order to calculate the detention period for 140 days, the Ministry assumed that the subsequent application will be examined within 90 days, plus 15 days for the time limit to appeal in the international protection procedure, plus 30 days for the suspensive effect of the appeal and examination of the appeal and another 5 days for the notification of the decision. The Ministry justified its decision also on the fact that the applicant changed the narrative for the new application for asylum and due to personal circumstances (lack of address and financial resources) an alternative measure could not be applied. The applicant challenged the detention decision and the Regional Court in Pilsen shortened the detention period to 110 days. The applicant further submitted a cassation appeal asking whether a regional court can shorten the detention period when deciding on the legality of the measure and claimed that if the Ministry of the Interior erred in calculating the detention period, then the measure is unlawful in its entirety.

The Supreme Administrative Court determined that when considering the initial period of detention, the Ministry must not only consider the necessary time to decide on international protection, but it must primarily consider the protection of the person’s fundamental right to liberty. Thus, the court noted that the Ministry must aim to decide on an asylum application as soon as possible, enabling for the release or return of the third country national, thus ending detention immediately. The Supreme Administrative Court ruled that the Ministry can ensure such expedited measure by ensuring that the initial detention period is not set up for a long period and that its extension is justified by serious reasons.

The court clarified that a decision on an initial detention will be subject to judicial review if the Ministry initially detains the foreigner for an unjustifiably longer period, which results into a long detention being unlawful in its entirety. As such, administrative courts cannot annul the Minister’s detention decision by shortening the detention period themselves.

The Supreme Administrative Court allowed the cassation appeal and first made a detailed overview of the applicable EU legislation and case law. The court referred to the provisions of the Return Directive applicable for detention of foreigners and to the recast Reception Conditions Directive (RCD) applicable for detention of asylum applicants as well as to the national legislative provisions implementing those EU provisions. It referenced the CJEU jurisprudence on the Return Directive and the recast RCD to recall that judicial review of detention must be an ex nunc and ex officio examination, and that a detained foreigner must be released immediately when the conditions for his detention were not met at the time of taking the contested measure, but also if they are not met at the time of the judicial review (Grand Chamber, C, B and X v State Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid, Joined Cases C-704/20 and C-39/21, 8 November 2022). The Supreme Administrative Court further emphasized that the recast RCD does not provide a time limit for detention, and it does not derive from that directive that a maximum period of detention must be provided for in the national legislation. The court noted that the Czech legislation provides for a maximum duration of 180 days for detention and previously it was shorter, 120 days. The change in the maximum period of detention does not however affect the time limits for processing an asylum application by the Ministry of the Interior, which however needs to duly justify a detention decision and its duration. As such, a judicial review is effective when the Ministry justified its decision, and a court can review whether the Ministry has abused or exceeded its prerogatives. Moreover, for asylum applications made in detention presumably with the aim of preventing return, the detention and its duration are intrinsically linked to the asylum proceedings and as such it cannot be shorter than the duration of the asylum proceedings but if those proceedings take longer, and exceed the legal deadlines, then the detention measure becomes disproportionate. The court clarified that it is essential that a judicial review of the legality of detention is carried out at intervals, to allow the foreigner to provide answers and for the authorities to check whether the grounds of detention persist.

The Supreme Administrative Court further clarified those aspects that must be taken into account when determining the initial duration of detention: i) the scope of detention, when the application was made to delay return, is to ensure the applicant’s availability in case of a negative decision and ii) no one may be arbitrarily detained. As such, the Ministry must strike a balance when deciding on the initial duration of asylum detention to make sure that it is set long enough to avoid repeated extensions, but short enough to prevent arbitrariness.

The court also provided interpretation for how to assess whether an initial asylum detention period is too long, especially since the assessment needs to be done on an individual basis for each case. The court clarified that an excessively long initial asylum detention period can be defined as a period that unjustifiably deviates from previous administrative practice, or is clearly longer, precisely when the determination did not take into account the need to prevent arbitrariness in the deprivation of personal liberty.

When applied to the present case, the court found that the applicant was detained for 140 days, whereas in previous cases and under the same legal framework, it decided to detain foreigners for only 110 days. In the present case, the deviation from its previous practice was justified only by assumptions of procedural developments without assessing the applicant’s personal freedom and the risk of arbitrariness, thus the decision lacked proper justification. The Supreme Administrative Court emphasised that for the Ministry’s decision to be lawful, it should have fulfilled the two requirements: to particularly consider the need to prevent arbitrariness while ensuring that the measure accomplishes its scope.

Therefore, the court concluded that the Regional Court correctly assessed that the detention period was too long but incorrectly shortened the duration as it should have annulled the Ministry’s decision entirely since the Regional Court has no competence to decide on a shorter period of detention.

The court clarified that neither the Reception Conditions Directive nor national legislation allow for a court to shorten the detention period. On the contrary, the Asylum Act specifies that the Ministry decides the duration of detention and courts cannot because the legal system does not allow it. Consequently, the Supreme Administrative Court annulled both the lower court decision and the decision of the Ministry of the Interior.