On 2 September 2026, the applicant applied for international protection at Amsterdam Schiphol Airport. The Royal Netherlands Marechaussee (KMar) postponed the decision on refusing him entry to the Netherlands, referred him to the asylum border procedure and imposed a measure depriving him of liberty under Article 6(3) of the Aliens Act 2000. The applicant challenged the detention measure, and the District Court of The Hague, sitting in Amsterdam, referred nine questions to the CJEU for a preliminary ruling.

The applicant argued that the handling of his asylum application at the external border was incompatible with EU law because the authorities had not adequately assessed the suitability of the border procedure, the necessity and proportionality of detention, the availability of less restrictive measures, or whether the screening had been sufficiently thorough and accompanied by effective access to legal assistance. The Minister of Asylum and Migration disputed these arguments.

The court examined the requirement that detention constitute a measure of last resort (ultimum remedium). It noted that detention interferes with fundamental rights, including the right to liberty, human dignity and respect for private life, and that restrictions on fundamental rights must comply with the requirements of necessity and proportionality under Article 52(1) of the EU Charter. Under Article 10(2) of the Reception Conditions Directive (2024 RCD), detention may be imposed only when an individual assessment establishes that less coercive measures cannot be applied effectively.

The court considered Articles 43 and 45 of the Asylum Procedures Regulation (APR) which provide for the application of the asylum border procedure in specified circumstances, and Article 10(4) of the 2024 RCD, which permits detention for the purpose of deciding on an applicant's right to enter the territory during that procedure. It also referred to Article 54(1) and (4) of the APR, under which Member States must designate locations for the border procedure, but the obligation to remain at such a location does not itself authorise entry into or residence in the Member State. The court concluded that EU law does not establish an automatic link between the application of the asylum border procedure and detention, as the procedure may be conducted at a designated location that is not a detention facility.

The minister maintained that detention was necessary in the interests of border control and to facilitate the removal of applicants whose claims were rejected. However, the court questioned whether the general interest in border control, in itself, justified routinely detaining applicants processed under the asylum border procedure. It considered that the Dutch practice, under which applicants are detained unless they fall within one of the exceptions specified in Work Instruction Asylum Border Procedure 2026/23 (WI 2026/23), raised concerns under Article 10(1) of the 2024 RCD and the principle that detention must be a measure of last resort. The court also questioned whether the national judge reviewing detention must independently assess its necessity in the individual case, including of the judge's own motion where necessary. In this regard, it referred to the CJEU judgment 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), concerning the obligation of courts to consider, of their own motion, all relevant factual and legal elements when determining the lawfulness of detention.

The court further examined the Dutch policy of imposing border detention by default without providing for less restrictive measures. It noted that Article 10(2) and recital 33 of the 2024 RCD require an individual examination of alternatives before detention is imposed. The court considered that the Dutch approach, described as “border detention, unless…”, raised questions regarding compliance with the principle of detention as an ultimum remedium. It referred to possible alternatives, including residence at an open designated location, reporting obligations, confiscation of a passport, bail and electronic monitoring. It also observed that detention could be imposed after the asylum procedure if individual circumstances established an unacceptable risk of absconding. The court therefore questioned whether Member States must establish legislative or policy arrangements for less restrictive measures and, if so, which measures should be available.

The court also questioned whether the screening conducted by the KMar provided sufficient information to determine whether the asylum border procedure was appropriate and whether detention was necessary and proportionate. Under WI 2026/23, the screening focuses on whether the applicant falls within specified categories or whether an exception applies. However, it does not consider the apparent prospects of the asylum application, the security situation in the country of origin or the applicant's willingness to cooperate within the procedure.

The court considered that the prospects of the asylum application and the security situation in the country of origin might be relevant to determining whether the border procedure should be applied, having regard to Articles 44 and 45 of the APR. It noted that Article 45(1), read in conjunction with Article 42(1)(j), provides for the application of the asylum border procedure to applicants from countries with an asylum recognition rate of 20% or less, subject to the applicable exceptions, including where that rate is not representative of the protection needs of a particular category of applicants. The court also considered that the applicant's willingness to cooperate could be relevant to the application of the border procedure and to the necessity and proportionality of detention.

The court questioned whether the minister's assessment of detention adequately considered all relevant facts and circumstances. Although the KMar routinely asks applicants about their medical circumstances, family connections and other personal circumstances that might make detention disproportionately burdensome, it does not consider the apparent prospects of the asylum application or the applicant's willingness to cooperate. The court referred to the CJEU judgment of 8 November 2022 in C, B and X and asked what degree of intensity is required when examining alternatives to detention and assessing its proportionality.

Finally, the court examined the absence of legal assistance before and during the screening conducted by the KMar. Applicants are asked to explain their understanding of the consequences of having their entry postponed and their asylum application examined in the border procedure while staying in a closed detention facility. The court noted that applicants may be unfamiliar with the procedure and their rights and may not fully understand the consequences of detention. It referred to instances in which applicants had indicated that they did not realise they had agreed to remain in a detention facility. The court considered that access to a lawyer before and during the screening could enable applicants to understand their rights, identify possible alternatives to detention and raise relevant factual circumstances or objections. It therefore asked whether the 2024 RCD, read in conjunction with Articles 6 and 47 of the EU Charter, requires effective access to legal assistance at these stages and what consequences the absence of such assistance has for the lawfulness of detention.

Questions referred to the CJEU:

1. Are Articles 6 and 52(1) of the EU Charter and Articles 9 and 10(1) and (2) of the 2024 RCD, read in conjunction with Article 54(1) and (4) of the APR, to be interpreted as meaning that the interest in border control is not in itself sufficient to impose border detention if the asylum application is examined in the asylum border procedure? If so, what circumstances should be considered in order to determine whether border detention is necessary?
2. Is it for the detention judge, if necessary of their own motion, to determine whether there is a need to impose border detention in the individual case?
3. How does the minister's method, whereby an applicant who does not belong to one of the exceptional cases described in WI 2026/23 is placed in border detention by default, without the possibility of a less restrictive measure, relate to the EU law principle of detention as an ultimum remedium, Articles 1, 6, 7 and 52(1) of the EU Charter, and Article 10(2) of the Reception Directive?
4. Does Article 10(2) of the Reception Directive require a Member State to establish possibilities in legislation and/or policy for applying a less restrictive measure in the context of border detention? If so, what forms of less restrictive measures should be considered? If not, how can it be ensured that an applicant can benefit from the possibility of a less restrictive measure?
5. How does the method whereby the screening for the purpose of potentially applying the asylum border procedure does not take into account the prospects of the asylum application, the security situation in the country of origin and/or the applicant's willingness to cooperate during the procedure relate to the system established by Articles 44 and 45 of the APR?
6. How does the method of not taking into account the prospects of the asylum application, the security situation in the country of origin and/or the applicant's willingness to cooperate during the procedure relate to the principle that detention is an ultimum remedium and must comply with the principle of proportionality under EU law when determining whether border detention is proportionate?
7. What degree of intensity is required of the minister when properly examining all non-custodial measures as alternatives to detention, as referred to in Article 10(2) and recital 33 of the Reception Directive?
8. What degree of intensity is required of the minister when examining the proportionality of border detention?
9. Are Articles 10(1) and (2) and 11(1) of the Reception Directive, read in conjunction with Articles 6 and 47 of the EU Charter, to be interpreted as meaning that, when assessing whether an applicant qualifies for the asylum border procedure and whether border detention is necessary and proportionate, it must be taken into account whether the applicant has had effective access to legal assistance before and during the screening and before the imposition of the border detention measure? If so, what consequences does the absence of such assistance have for the lawfulness of border detention?