News

On 9 September 2026, the Supreme Administrative Court of Lithuania (LVAT) delivered its judgment in Case no. SU-32-575/2026 concerning the distinction between restrictions of freedom of movement and detention of asylum applicants during border procedures.

The case concerned a pregnant applicant for international protection whom the Migration Department required to stay in a reception centre without freedom of movement during the border procedure. She challenged that decision and requested accommodation in a temporary accommodation facility without restrictions of movement. She could move within territory of the reception centre but could not leave without prior permission or escort. She requested permission to leave on three occasions but was not able to do so.

The Court first clarified that, although Article 54(1) Regulation (EU) 2024/1348 (the Asylum Procedure Regulation) requires applicants undergoing the border procedure to reside at a designated location, the arrangements implementing that obligation must comply with Directive (EU) 2024/1346 (the recast Reception Conditions Directive). Accordingly, national law must be interpreted in light of that Directive and, in the event of a conflict, EU law prevails and conflicting national provisions must be disapplied. The Court emphasised that detention requires specific grounds, an individual assessment of its necessity and a reasoned decision, and that immediate release is required where detention is unlawful.

It further held that the prohibition on entering the territory of a Member State during the border procedure under Article 43(2) of the Asylum Procedure Regulation does not, in itself, constitute a sufficient legal basis for deprivation of liberty. Detention is an autonomous concept of EU law, and its distinction from restrictions on freedom of movement depends on the measure’s actual content and effects. This requires an overall assessment of the applicant’s individual circumstances, the purpose and duration of the regime, procedural guarantees and the nature and extent of the restrictions, including whether the person has a real possibility of voluntarily leaving the accommodation facility.

In the present case, the Court found that the restrictions amounted to detention. Under national law, detention exceeding 48 hours requires a court decision, so the Migration Department’s decision did not provide a sufficient legal basis. It also failed to identify any of the grounds for detention under Article 10(4) of the recast Reception Conditions Directive, to individually assess the necessity of detention or to explain why less restrictive measures could not be applied. The Court noted that pregnancy does not itself preclude border procedures or restrictions on movement, but must be considered when assessing proportionality and possible special reception needs.  

The Court therefore concluded that the detention was unlawful, annulled the first-instance judgment and the Migration Department’s decision and ordered the applicant’s immediate release. It also required the Migration Department to reconsider her accommodation while allowing her to remain at the reception centre without restrictions on her freedom of movement in the meantime. The Court clarified that release did not itself authorise entry into Lithuanian territory or terminate the border procedure. While an obligation to reside at a designated place could remain if the procedure lawfully continued, this would not justify preventing the applicant from leaving the accommodation facility.

On 3 September 2026, Advocate General Norkus delivered his opinion in the Case C-218/25 (Wompou) following a request for a preliminary ruling from the District Court of The Hague, sitting in Amsterdam (Rechtbank Den Haag, zittingsplaats Amsterdam). It concerned the interpretation of Article 16 of Directive 2008/115/EC (the ''Return Directive'') regarding the conditions of detention of third-country nationals pending return.

The Advocate General first recalled that detention in the context of a return procedure constitutes a serious interference with the right to liberty under Article 6 of the Charter of Fundamental Rights of the EU and must therefore remain exceptional and strictly circumscribed. He noted that such detention must, as a rule, take place in specialised facilities and differ from imprisonment since its purpose is neither prosecution nor punishment. Nevertheless, Article 16(5) of the Return Directive allows the imposition of rules and obligations beyond restrictions on freedom of movement provided that they comply with Article 52(1) of the Charter. The assessment of proportionality of such restrictions must take account of their individual and cumulative effects and the duration of detention. The national court must carry out a comprehensive assessment to ensure that the overall conditions are not carceral or punitive in nature or undermine human dignity. He also emphasised that detention conditions must comply with the absolute prohibition of inhuman or degrading treatment under Article 4 of the Charter.

Regarding the specific detention conditions examined, the Advocate General considered that shared cells and restrictions on movement and out-of-cell activities are not in themselves incompatible with Article 16 Return Directive, but must be assessed together in light of the detainees’ non-criminal status and the duration of those restrictions. It is for the national court to determine whether night-time confinement pursues an objective of general interest and whether it is proportionate, especially regarding its duration. Access to a lawyer under Article 16(2), read in light of Articles 47 and 48(2) of the Charter, must be practical, effective and timely, and access to medical care under Article 16(3) must be provided without undue delay, taking into account the gravity and urgency of the medical treatment. Staff accompaniment in both cases does not in itself infringe those rights, provided that consultations remain private.

He further considered that security screening and video surveillance may interfere with the rights to private life and protection of personal data under Articles 7 and 8 of the Charter and, where personal data are processed, must comply with the applicable requirements of the General Data Protection Regulation (GDPR). Restrictions on access to personal mobile phones and internet interfere with the right to freedom of expression under Article 11 of the Charter. Although certain restrictions on mobile phones may be justified to protect the privacy and personal data of detainees and staff, an almost blanket prohibition would be disproportionate. Given the non-punitive nature of detention, detainees should, in principle, have unrestricted internet access, subject to legitimate, necessary and proportionate restrictions on specific websites or downloads when necessary.

Regarding judicial review, the Advocate General considered that the intensity of review of restrictions on Charter rights depends on the nature of the rights affected, the nature and seriousness of the interference and the objective pursued. He considered that the restrictions affecting the rights protected by Articles 7, 8 and 11 of the Charter in the present case require strict judicial review to ensure compliance with Article 52(1) of the Charter. He further concluded that the cumulative conditions of detention must be subject to strict judicial review where there are cogent indications that Article 16(1) of the Return Directive may have been infringed.

On 3 September 2026, the Fifth Section of the European Court of Human Rights (ECtHR) delivered its judgment in B.C. v. Italy (Application no. 42909/23) concerning the deprivation of liberty of an unaccompanied child in a reception centre in Brindisi, Italy.

The applicant, an Ivoirian national, arrived in Italy in August 2023 and expressed his intention to apply for international protection. After being recognised as a minor, he was placed in the C.A.R.A. centre for asylum applicants, which had initially been intended for adults but was subsequently used exclusively to accommodate children. He remained there for approximately two and a half months before being transferred to a facility specifically designated for unaccompanied children. He complained that he had been unlawfully deprived of his liberty and had been unable to challenge his detention, as well as about the conditions of his stay at the C.A.R.A. centre.

In regard to Article 5 ECHR, the Court noted that the applicant was unable to leave the centre and had been placed there without a clear and accessible legal basis or reasoned decision ordering his detention. It therefore found that his deprivation of liberty had been arbitrary. The absence of a legal basis also meant that he could not be properly informed of the reasons for his detention or provided sufficient information to be able to challenge the decision before a court. Consequently, the Court found a violation of Articles 5 §§ 1, 2 and 4 ECHR.

Regarding the conditions at the centre, the applicant complained under Articles 3 and 8 ECHR about the poor material and hygienic conditions, insufficient educational and recreational activities, lack of socialisation and restrictions on leaving the centre. The Court examined these complaints under Article 3 alone and found that the available evidence did not show that the applicant’s situation had reached the level of severity required to constitute inhuman or degrading treatment under Article 3 and declared this complaint manifestly ill-founded.

On 25 June 2026, the Constitutional Court of Belgium (Grondwettelijk Hof) delivered its judgment no. 78/2026, concerning the procedure introduced by the Act of 10 March 2024 for granting a residence permit to stateless persons. The applicants challenged several provisions, arguing that the procedure applicable to stateless persons provided less favourable guarantees than those available to beneficiaries of international protection and was therefore discriminatory.

The Court held that the legislature is not required to treat stateless persons in the same way as refugees or beneficiaries of subsidiary protection, as stateless persons are not subject to European legislation. However, it found that several conditions and procedural rules imposed disproportionate limitations on applicants for residence on grounds of statelessness.

It considered that the requirement that applicants must be unable to acquire or regain the nationality of another State was incompatible with the concept of statelessness under the 1954 New York Convention, as a person is stateless when they do not possess any nationality, regardless of whether they may subsequently obtain or recover one. It therefore annulled this condition. The Court also annulled the exclusion of applications where applicants had not previously held lawful residence for more than three months or had not previously applied for international protection, finding that this could disproportionately affect stateless persons who may never have held a residence permit.

The Court held that a personal hearing constitutes an essential procedural safeguard in statelessness proceedings and therefore annulled the provision making such a hearing optional. It also ruled that the five-year residence period must begin once the judgment recognising statelessness becomes final. Finally, it required applicants to receive proof of submission of their application and to be protected, in principle, from enforcement of removal measures during the proceedings, except on grounds of national security or public order.

The Court rejected the remaining complaints, holding that statelessness applicants were not required to benefit from all procedural guarantees applicable to asylum applicants, including an appeal with full jurisdiction and suspensive effect.

Unofficial translation by the EWLU team

On 28 May 2026, the High Court of Justice (King’s Bench Division, Administrative Court) delivered its judgment in Freedom from Torture & Anor v Secretary of State for the Home Department (2026 EWHC 1278 (Admin)). The case concerned the challenge to the Secretary of State’s amendments “Allocation of Asylum Accommodation” policy (Versions 11–13), which significantly altered long-standing protective provisions for a particularly vulnerable group of asylum applicants, namely survivors of torture, trafficking and other serious violence victims receiving support from specialist organisations.

The Court held that there had been a long-standing practice of consultation with the Claimants in relation to relevant policy changes and found that the Defendant acted unlawfully by introducing the amendments without prior consultation. It considered that consultation would have been an obvious and reasonable means of assessing the likely impact of the changes on a vulnerable group of asylum applicants.

The Court further held that the Defendant breached the Public Sector Equality Duty (PSED) under section 149 of the Equality Act 2010 (“EA 2010”). The Equality Impact Assessments were materially inadequate, as they failed to properly assess the potential disproportionate harm that the policy changes would have on survivors of torture, trafficking and other serious violence, did not engage with relevant evidence of risk, and lacked adequate monitoring.

Finally, the Court held that the Defendant also breached the Tameside duty by introducing fundamental policy changes without adequately investigating their impact on survivors of torture, trafficking and other serious violence despite longstanding evidence of the serious risks faced by this vulnerable group. It held that the Secretary of State failed to undertake inquiry, engage with relevant expert sources, or consider relevant material before adopting the amendments.

Therefore, the Court concluded that the challenged amendments to the Allocation of Asylum Accommodation policy were unlawful.

On 21 May 2026, the Belgian Constitutional Court delivered its judgment no. 66/2026 . The case concerned legislative amendments to the asylum reception regime introduced by two Laws of 14 July 2025: (i) the limitation of material assistance for asylum applicants already benefiting from protection in another EU Member State, and (ii) the abolition of the possibility to grant reception in the form of financial assistance in exceptional circumstances. In its previous judgment no. 23/2026, the Constitutional Court suspended both measures and referred a preliminary question to the Court of Justice of the European Union. In the present judgment, the Court ruled only on the second measure, while the first measure remains pending before the Court of Justice.

The Court recalled that Directive 2013/33/EU on common procedures for granting and withdrawing international protection (the recast Asylum Procedures Directive (rAPD)) grants Member States a margin of discretion as regards the form and level of reception provided to asylum applicants, including the possibility to only provide material reception in accommodation centres. It held that where the system is saturated and there is no place available in reception centres, or where material assistance is unavailable or inadequate, the exclusion of any possibility of financial assistance creates a risk of substantial impairment of the right to human dignity. Therefore, the contested provisions would constitute a breach of EU law.

The Court further held that the abolition of financial assistance in exceptional circumstances resulted in a significant and unjustified deterioration in the level of protection of the rights to human dignity, social assistance and adequate housing under Article 23 of the Constitution. It also found that the measure was incompatible with the right to respect for private and family life under Article 22 of the Constitution.

The Court therefore annulled the provisions abolishing the possibility to provide asylum applicants s with reception in the form of financial assistance in exceptional circumstances.

On 5 March 2026, the Court of Justice of the European  Union (CJEU) delivered its judgment in the case C-489/24 (Safita). The case arose from a request for a preliminary ruling by the Council of the State of The Netherlands (Raad van State) concerning the interpretation of Directive 2013/32/EU (the recast Asylum Procedures Directive (rAPD)), in particular about the possibility for Member States to adopt several successive decisions extending the time limit for examining applications for international protection where a large number of applications are lodged within a short period.

The Court clarified that, under point (b) of the third subparagraph of Article 31(3) of Directive 2013/32/EU, a Member State may decide on several occasions and consecutively to extend the time limit for the examination procedure. However, the Court emphasised that the application of that provision is subject to three cumulative conditions: (i) applications for international protection must be lodged simultaneously, (ii) they must be lodged by a large number of applicants, and (iii) the situation must make it very difficult in practice to conclude the examination within the initial six-month period. Referring to its previous case law, the Court recalled that such extensions are justified only in the event of a significant increase in applications occurring within a short period, compared with the normal and foreseeable trend in the Member State concerned, and not in situations characterised by a gradual increase of applications over an extended period.

Furthermore, the Court held that under Article 4(1) rAPD, where the number of applications for international protection remains continuously high over an extended period, Member States are obliged to allocate appropriate and sufficient means to the determining authority to enable it to process those applications. A Member State may therefore rely on consecutive extensions only if it demonstrates, with sufficient reasons and evidence, that despite the efforts to address the simultaneous lodging of applications, it did not have sufficient time to allocate the necessary resources. In any case, the duration of successive extensions must not exceed either the time necessary to comply with that obligation or a maximum overall period of 21 months from the lodging of the application.

On 18 December the Court of Justice of the European Union (CJEU) delivered its judgment in Case C‑184/24 (Sidi Bouzid). The case concerns AF and his minor child BF, applicants for international protection in Milan, who challenge the withdrawal of their material reception conditions following AF’s refusal to be transferred to another accommodation centre. The national authorities justified the withdrawal under Article 23(1)(a) of Legislative Decree No 142 as an administrative measure related to the organization of reception centres, while AF argues it violates his and his child’s rights to basic needs and protection as vulnerable persons under Directive 2013/33 (the recast RCD). The regional administrative court for Lombardia has referred a preliminary question to the Court of Justice asking whether EU law precludes withdrawal of reception conditions, not as a sanction but because of a refusal to transfer, where this leaves applicants unable to meet basic needs, provided the authority ensures equivalent conditions at another centre. 

While referring to the relevant case-law (Haqbin, Ministero dell’Interno), the Court emphasized that “material reception conditions” include housing, food, clothing, and daily expenses allowances. These conditions must guarantee a dignified standard of living, particularly for vulnerable persons such as minors or single parents, in accordance with Articles 17 and 21 of the recast RCD. While Article 20 permits withdrawal or reduction of reception conditions in cases of abuse, including when an applicant abandons the designated place of residence without informing the authorities, a refusal to transfer to another accommodation centre does not constitute “abandonment,” as the applicant remains present and traceable, and therefore the withdrawal of all material reception conditions is not allowed under Article 20(1)(a).  

The Court confirmed that repeated refusal to comply with a transfer decision may constitute a serious breach of the rules of an accommodation centre under Article 20(4), which can justify the imposition of proportionate sanctions, including partial reduction of material reception conditions, provided that the applicant’s dignity and fundamental rights are respected. In assessing such breaches, Member States must consider the nature and persistence of the conduct, its impact on the management of reception centres, and the applicant’s particular circumstances. The Court stressed that the competent authorities retain the power to implement necessary transfers to ensure the effective management of reception facilities, while upholding the applicant’s fundamental rights and maintaining equivalent reception conditions in the new centre. 

On that basis, the Court concluded that the national legislation at issue precludes the competent authority from withdrawing all material reception conditions from an applicant who refuses transfer to another accommodation centre, while confirming that partial sanctions may be imposed if the conditions of Article 20(4) and (5) are met.