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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, the European Court of Human Rights (ECtHR) communicated the case Matoussi v. Denmark (Application no. 26840/26), concerning the residence and reporting obligations imposed on the applicant following an expulsion order that could not be implemented, and their alleged incompatibility with Articles 3, 5, 8 and 14 of the European Convention on Human Rights (ECHR).

The applicant, a Tunisian national born in Denmark, was ordered to be expelled with a permanent re-entry ban following criminal proceedings in 2018. As his removal could not be carried out, in May 2019 the Return Agency required him to reside over night at the Kærshovedgård return centre and to register with the police at the centre during the day. The order was subsequently prolonged. The applicant challenged the measures before the domestic courts, but his claim was dismissed and permission to appeal to the Supreme Court was refused in March 2026. It appears that he has left Denmark voluntarily.

The Court asked the parties, inter alia, whether the applicant’s living conditions at the return centre amounted to treatment contrary to Article 3 ECHR and whether the residence and reporting obligations amounted to a violation of Article 5 ECHR. 

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 10 July 2026, the European Court of Human Rights (ECtHR) communicated the case Jovanovic v. Denmark (Application no. 24677/26), concerning the residence and reporting obligations imposed on the applicant following an expulsion order that could not be implemented, and their alleged incompatibility with Articles 5 and 8 of the European Convention on Human Rights (ECHR).

The applicant, who is apparently stateless, has lived in Denmark since arriving there with his mother at the age of three. Following previous criminal proceedings, in 2023 he was ordered to be expelled with a six-year re-entry ban. As his removal could not be carried out, the Return Agency subsequently required him to stay at the Kærshovedgård return centre and to report to the police there three times per week. He was later sentenced to ten months’ imprisonment for failing to comply with those requirements between January and April 2025. The High Court upheld his conviction and permission to appeal to the Supreme Court was refused.

The Court asked the parties whether those obligations amounted to a deprivation of liberty under Article 5 of the Convention, and to an unjustified interference with the applicant’s private life under Article 8 ECHR.

On 16 July 2026, the Belgian Constitutional Court delivered its judgment no. 89/2026 concerning two actions for annulment brought by several organisations against provisions of the Act of 12 May 2024, which introduced measures aimed at strengthening the removal of third-country nationals staying irregularly in Belgium. The contested measures concerned mandatory medical examinations for the purpose of removal, presumptions of absconding in Dublin transfer procedures, the obligation to cooperate with return procedures and alternatives to detention.

First, the Court raised doubts as to whether mandatory medical examinations imposed for the purpose of enforcing return decisions are compatible with Directive 2008/115/EC (the ''Return Directive''). It observed that a compulsory examination may affect human dignity and interfere with physical integrity, particularly where it can be imposed against the person's will for non-therapeutic purposes and without requiring the authorities to provide alternatives. It therefore referred two questions to the Court of Justice of the European Union (CJEU) concerning the compatibility of the measure with the Return Directive and the Charter of Fundamental Rights of the European Union.

Second, the Court distinguished between circumstances indicating an intention to abscond from the authorities and a failure to cooperate with the transfer procedure. It considered that a presumption of absconding may be justified where a person fails to report to the assigned reception facility or leaves it without notifying the Immigration Office of an address within three working days, while allowing the person to subsequently demonstrate that they did not intend to abscond from the authorities. By contrast, failure to cooperate with a mandatory medical examination or an intensive support programme does not justify such a presumption where the person remains at their place of residence. The Court therefore annulled the relevant provisions.

Third, the Court clarified that the obligation to cooperate does not apply to a person who has lodged an appeal with suspensive effect against a return decision and is consequently entitled to remain in Belgium pending that appeal.

Lastly, the Court held that even where alternatives to detention are presumed to be ineffective, the authorities must carry out a specific and individual assessment before resorting to detention. It further annulled the legislation insofar as it provided for only two types of alternative measures and did not include the possibility of requiring the person concerned to surrender their identity or travel documents.
 

On 24 June 2026, the European Court of Human Rights (ECtHR) communicated the application Ali Khaledi Batrashi and Others v. Cyprus (Application no. 29564/25). The case concerns the alleged unlawful deportation of the first applicant to Iran without an adequate assessment of the risk of ill-treatment upon return, as well as the alleged lack of procedural safeguards in the deportation and detention proceedings.

The first applicant had lived in Cyprus since 2007 and remained there on humanitarian grounds after his asylum application was rejected, owing to the severe disability of one of his daughters. Following his arrest in 2023 on suspicion of involvement in terrorist activities, he was detained several times and was deported to Iran in May 2025. The first applicant alleges that his deportation exposed him to a real risk of ill-treatment in Iran and that he was subjected to treatment contrary to Article 3 during his deportation. He further complains that his detention was unlawful and arbitrary and that the judicial review proceedings concerning his detention did not comply with the requirements of Article 5 ECHR. The remaining applicants complain that the first applicant’s deportation interfered with their right to respect for family life.

The Court asked the parties, inter alia, whether the Cypriot authorities carried out a thorough assessment of the alleged risk of ill-treatment before deporting the first applicant, whether his detention complied with the requirements of Article 5 ECHR and whether his deportation disproportionately interfered with the applicants’ right to respect for family life under Article 8 ECHR.

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 1 June 2026, entered into force the abolition of mandatory legal representation in deportation detention proceedings in Germany, which was regulated in Section 62d of the Residence Act (Aufenthaltsgesetz). The amendment was introduced by the Act on the Determination of Safe Countries of Origin by Ordinance and on the Abolition of the Legal Representative in Deportation Detention of 22 December 2025 (Federal Law Gazette 2025 I No. 364). The corresponding reference in Section 2(14) of the Residence Act, relating to Dublin transfer detention proceedings, was also removed.

Unofficial translation by the EWLU team

On 11 June 2026, the Advocate General Laila Medina delivered her opinion in the Joined Cases C-706/25 and C-707/25 (Comeri and Sidilli). The cases concerned the compatibility of the Italian legislation implementing the Italy–Albania bilateral agreement, which allows the transfer of third-country nationals to detention facilities located in Albanian territory for the purposes of asylum border and return procedures, with EU law, in particular with Directive 2013/32/EU (the recast ‘Asylum Procedures Directive’ (APD)), Directive 2013/33/EU (the recast Reception Conditions Directive (RCD)), and Article 3(2) TFEU.

The Advocate General considered that EU law does not preclude Member States from locating detention facilities for asylum applicants outside the territory of the European Union, provided that those facilities are under the effective and exclusive jurisdiction of that Member State. In such circumstances, the areas concerned must be regarded as falling within the “territory of a Member State” for the purposes of Directives 2013/32 and 2013/33, which therefore apply in full.

She recalled that the grounds for detention listed in Article 8(3) of RCD are exhaustive, and Member States may not introduce additional grounds for detention. She considered that the Italian legislation relied on grounds already recognised by EU law and therefore did not infringe that requirement. However, the Protocol and the implementing legislation are liable to alter the effectiveness of several procedural guarantees harmonised by EU law. In particular, concerns arise regarding the access to legal assistance and judicial protection because of the geographical separation between lawyers and applicants and the systematic use of remote hearings, the confidentiality of lawyer–client communications, the reimbursement for lawyers’ travel costs to Albania, and the rights of communication and visiting for family members.  The Advocate General noted that applicants cannot leave the Albanian facilities by their own means and the legislation does not regulate their return transfer to Italy. This is at odds with the requirement under Directive 2013/33 that detention ceases immediately once its validity ends.

She therefore concluded that detention outside EU territory is not, in itself, incompatible with EU law. However, Article 3(2) TFEU precludes Member States from concluding  international agreements and adopting national ratification and enforcement measures which alter the practical scope of the minimum procedural guarantees harmonised by Article 9(3), (4) and (6) of Directive 2013/33, read in conjunction with Article 22(1) of Directive 2013/32, interpreted in the light of Article 47 of the Charter of fundamental rights of the European Union.

On 4 June 2026, Advocate General Jean Richard de la Tour delivered his opinion in Case C-182/26 PPU (Hardeker), concerning the interpretation of Directive 2008/115/EC (the ‘Return Directive’), including whether a return decision may designate more than one country of destination.

The Advocate General considered that Article 6(1) of the Return Directive requires a return decision to indicate a country of destination but does not exclude the possibility of designating several destinations. This follows from Article 3(3) of the Directive, which defines “return” broadly without establishing any hierarchy between categories of destination, meaning that more than one third country may simultaneously satisfy the conditions for removal. He added that such an approach does not, in itself, weaken fundamental rights protection, since each designation can be challenged and the principle of non-refoulement under Article 5 of the Return Directive, read with Article 19(2) of the Charter of Fundamental Rights of the European Union, must be assessed in relation to all listed countries. However, he emphasized that each designated country must be individually justified by concrete factual elements meeting the requirements of Article 3(3) of the Return Directive and remain subject to judicial review.

The Advocate General further held that a court reviewing detention cannot, of its own motion, examine whether the return decision complied with the principle of non-refoulement, nor can it treat any alleged defect in that regard as affecting the validity of the return decision serving as the legal basis for detention. He clarified that the Return Directive distinguishes return decisions (Articles 6, 12 and 13) from detention (Article 15), and that judicial review in detention proceedings is limited to verifying the existence of the “constituent elements” of a return decision, such as the identity of the person concerned, the obligation to return and the designation of a country of destination. Compliance with non-refoulement under Article 5 of the Directive and Articles 4 and 19(2) of the Charter forms part of the substantive assessment of the return decision and does not constitute one of its constituent elements for the purposes of detention control. Hence, during the detention review courts may not review the legality of the return decision itself, but they must still ensure that removal is not carried out in breach of non-refoulement.

The obligation to assess compliance with the principle of non-refoulement under Article 5 of Directive 2008/115, read in light of Article 19(2) of the Charter, must be carried out independently by both the administrative authority and the court reviewing detention on the basis of all available information. Where several countries of destination are designated, the assessment must be carried out separately for each of them. Detention is precluded where removal to all designated countries would expose the person to a real risk of prohibited treatment, but it may be maintained where at least one designated country allows removal in compliance with non-refoulement. The court reviewing detention cannot modify or annul the return decision, as its role is limited to verifying whether detention remains legally justified in light of the possibility of lawful removal.

Unofficial translation by the EWLU team

On 8 April 2026, the European Court of Human Rights (ECtHR) communicated the application of K.P. v. Cyprus (Application no. 30430/25). The case concerns the alleged unlawfulness of the applicant’s detention pending deportation and the risk of ill-treatment if returned to Iran.

The applicant, an Iranian national recognised as refugee in Cyprus, was arrested in November 2023 on suspicion of involvement in terrorist activities. He was subsequently classified as a ‘’prohibited migrant’’ and placed in detention pending his deportation to Iran. The applicant challenged the detention and deportation decisions before the Administrative Court, which held that it lacked jurisdiction to examine the deportation decision and dismissed the recourse, finding the detention lawful, necessary and proportionate. The applicant subsequently lodged three habeas corpus applications before the Supreme Court, all of which were unsuccessful. The applicant complains under Article 3 of the risk of ill-treatment upon return to Iran as well as the conditions of his detention, under Article 13 in conjunction with Article 3 of the lack of an effective remedy to challenge his expulsion, and under Articles 5 §§ 1 and 4 ECHR regarding the lawfulness of his detention and access to legal aid.

On 9 April 2026, the First Section of the European Court of Human Rights (ECtHR) delivered its judgment in H.D. v. Italy (Application no. 41645/23). The case concerned the placement and prolonged stay of an unaccompanied child in an adult reception centre in Italy, as well as the lawfulness of his deprivation of liberty and the adequacy of available remedies.

The applicant, a Burkinabe national, was placed in the adult reception and asylum centre in Isola di Capo Rizzuto (Crotone). Despite being soon recognised as a minor and granted a residence permit, he remained in the centre for more than five months without being allowed to leave. During that time, he challenged his situation before the domestic courts and subsequently requested an interim measure under Rule 39, which led to his transfer to a facility for unaccompanied children.

The Court found that the applicant’s deprivation of liberty lacked any legal basis and could not be justified under Article 5 § 1 (f) ECHR. It examined both limbs of that provision and noted that no removal or refusal of entry procedure had been initiated. On the contrary, the applicant had been formally recognised as a child and granted a residence permit to stay in Italy. The Court therefore concluded that his detention could not be justified under Article 5 § 1 (f). It also rejected the Government’s reliance on subsequent legislative amendments allowing the temporary accommodation of minors in adult centres, noting that these provisions entered into force after the applicant’s placement and did not provide a legal basis for deprivation of liberty. Furthermore, the Court held that the authorities failed to inform the applicant of the reasons for his detention, in breach of Article 5 § 2. Regarding Article 5 § 4, the Court recalled the requirement of a speedy judicial review and found that the domestic proceedings lasted several months and only concluded after the applicant’s transfer following an interim measure, therefore finding a violation of Article 5 § 4.

In relation to the complaint under Article 3, the Court reiterated the principles applicable to the treatment of persons held in immigration detention and emphasized the particular vulnerability of children. It found that the applicant had been held for over five months in an adult reception centre characterised by overcrowding, poor material and hygienic conditions, and a lack of appropriate services. Although children were nominally placed in a separate area, the evidence showed that separation from adults was ineffective in practice and that they lived in close contact. Moreover, no specific educational, recreational or psychosocial support adapted to minors was provided, and the applicant was not allowed to leave the centre. The Court concluded that the applicant had been subjected to inhuman and degrading treatment in violation of Article 3 ECHR.

The Court also found that Article 13 taken in conjunction with Article 3 had been violated. The applicant’s complaint concerned not only the material conditions of detention but also his placement in an adult facility, which required an effective remedy capable of securing his prompt transfer to a suitable centre for children. Although a domestic remedy was available, the Court considered that the delays in the proceedings rendered it ineffective in practice.

On 2 April 2026, the Human Rights Committee (CCPR) published its Views in the communication No. 3742/2020 submitted by Gentilmen Issa Magumba against the Republic of Korea, concerning the refusal to process an asylum application lodged in an airport transit zone and the applicant’s prolonged confinement in that zone.

The author, a national of the Democratic Republic of Congo, was held for approximately 14 months in the transit area of Incheon International Airport after being denied the possibility to apply for refugee status on the ground that he was a transit passenger and not subject to entry inspection. He claimed that this refusal exposed him to a risk of refoulement and that his confinement amounted to arbitrary detention and inhuman treatment.

The Committee found a violation of Article 7 of the International Covenant on Civil and Political Rights due to the denial of access to the asylum procedure. It reiterated that States must not remove individuals where there are substantial grounds for believing that they face a real risk of irreparable harm and must ensure access to an effective and independent review with suspensive effect. In the present case, the author’s asylum request was rejected solely on formal grounds linked to his status as a transit passenger, depriving him of any opportunity to seek protection against refoulement. The Committee held that domestic legal provisions cannot be applied in a manner that undermines obligations under the Covenant.

The Committee further found a violation of Article 9(1), holding that the author’s confinement in the airport transit area constituted a deprivation of liberty. It recalled that such deprivation may arise from confinement in a restricted airport area without free consent, and that prolonged and indefinite detention of asylum seekers may be arbitrary. The Committee noted that the author was subjected to de facto detention for approximately 14 months within a space under the State party’s jurisdiction, without any legal basis, as no formal detention order had been issued. His confinement was of indefinite duration, lacked appropriate justification, and was not based on an assessment of necessity or proportionality. The Committee therefore concluded that the author’s detention was arbitrary and constituted a violation of Article 9(1) of the Covenant.

Finally, the Committee found the conditions of detention and the prolonged exposure to inadequate living conditions such as lack of privacy, insufficient access to food, medical care and sanitary facilities and constant lighting during COVID-19 pandemic, to be incompatible with human dignity, therefore finding a violation of Article 10(1) of the Covenant.

The Committee concluded that the State party violated Articles 7, 9(1) and 10(1) of the Covenant and held that it is under an obligation to provide the author with an effective remedy, including compensation, and to take measures to prevent similar violations in the future.
 

On 16 April 2026, the Court of Justice of the European Union (CJEU) delivered its judgment in joined Cases C‑50/24 to C‑56/24 (Danané and Others), originating from a request for a preliminary ruling by the Belgian Council for asylum and immigration proceedings (Conseil du contentieux des étrangers). The cases concerned the interpretation of Directive 2013/32/EU (Asylum Procedures Directive) and Directive 2013/33/EU (Reception Conditions Directive), in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, in the context of asylum applications lodged at Brussels airport by third-country nationals who were detained in facilities situated within Belgian territory but legally treated as border facilities.

The Court clarified that Article 43 of Directive 2013/32 does not require border procedures to be carried out at geographically defined border locations. A procedure may fall within the scope of that provision even where the applicant is detained in a facility located within the territory of the Member State, as long as those facilities are legally treated as border or transit zones. The Court emphasised that neither the wording nor the objectives of the provision impose a geographical requirement and that a restrictive interpretation could render border procedures ineffective and undermine fundamental rights.

The CJEU further held that, once the four-week period laid down in Article 43(2) of Directive 2013/32 has expired, the examination of the application can no longer be carried out under the border procedure and must continue under the ordinary procedural framework of the Directive. However, EU law does not preclude the same detention facility from being reclassified from a “place at the border” to a “place in the territory”. In such circumstances, the Member State must ensure that applicants are informed of the change in their legal situation, including their authorisation to enter the territory.

The Court confirmed that applicants may remain detained after the expiry of the four-week period on a different legal basis, in particular under Article 8(3)(b) of Directive 2013/33. It held that the continuation of detention is permissible where necessary to determine elements of the application, insofar as it complies with the requirements of necessity, proportionality and individual assessment. It stressed that detention must remain exceptional and cannot be applied automatically or systematically.

It also ruled that, after the expiry of the four-week period, the determining authority may continue examining the application as a matter of priority under Article 31(7) of Directive 2013/32. It clarified that investigative steps carried out during the border procedure may be relied upon in subsequent procedures, provided that they comply with the basic principles and guarantees laid down in EU law.

Finally, it held that the expiry of the four-week period and the continued detention of the applicant do not affect the competence of the determining authority. The expiry of that period merely entails a shift from the border procedure to another procedural framework and the cessation of the specific temporal and material limitations applicable to border procedures.

On 17 March 2026, the Court of Cassation (Hof van Cassatie) dismissed an appeal against a judgment of the Brussels Court of Appeal (Hof van beroep te Brussel) upholding the detention of an asylum applicant at the border following the use of forged travel documents.

The applicant, a third-country national, attempted to enter Belgium using false travel documents and applied for international protection upon arrival at the border. He was consecutively placed in detention in a border facility pending a decision on his entry or possible return. The applicant challenged his detention, arguing that the use of false documents is inherent to the situation of asylum applicants and should be regarded as a failure to comply with entry formalities, which cannot itself justify detention under the Directive 2013/33/EU (the Reception Directive). He also requested to refer a preliminary question on this matter to the Court of Justice of European Union.

The Court of Cassation rejected those arguments and confirmed that, while under Article 8(1) of the Reception Directive an applicant for international protection may not be detained solely because of their asylum application, detention is permitted where necessary, including in order to decide on the right to enter the territory in the context of a border procedure (Article 8(3)(c)). The Court held that, in assessing the lawfulness of detention, national authorities may take into account the use of false documents and that they are not required to treat such conduct as merely a failure to comply with entry formalities or as inherent to the status of an asylum applicant. The Court further upheld the findings of the lower court that the detention was based on an individual assessment and was necessary to ensure the effectiveness of border control and the possibility of return. Finally, it found that the request for a preliminary ruling was not relevant and it dismissed the cassation appeal.

Unofficial translation by the EWLU team

On 5 March 2026, the Court of Justice of the European Union (CJEU) delivered its judgment in the case C-150/34 (Aroja). The case arose from a request for a preliminary ruling by the Supreme Court of Finland (Korkein oikeus) regarding the calculation of detention periods for the purpose of removal of illegally staying third-country nationals under the Directive 2008/115/EC (the Return Directive).

The Court clarified that Article 15(5) and (6) of the Return Directive must be interpreted as meaning that to determine whether the maximum detention period of an illegally staying third-country national has been reached, all periods of detention completed in the same Member State under Article 15 for the purpose of enforcing the same return decision must be taken to account. To reach this conclusion, the Court noted the serious interference with the right to liberty protected by Article 6 of the Charter of Fundamental Rights and the fact that detention under the Return Directive does not have punitive aims but seeks to secure the Directive's return-related objectives within strictly defined time limits. This requirement applies even where the detention periods are separated by intervals during which the person concerned was not detained, otherwise the authorities could circumvent those limits by releasing and subsequently re-detaining the individual based on the same return decision, likely resulting in a breach of the principle of proportionality.

The Court also recalled its previous case law and held that, under the second sentence of Article 15(3) of the Return Directive, any prolonged detention exceeding the initial maximum period of detention must, in all cases, be subject to review by a judicial authority, regardless of whether the detained person has requested it.  The Court further clarified that, in the absence of EU rules on the procedure of detention reviews in the event of prolonged detention periods, the review of an administrative decision extending detention beyond the initial maximum six-month period does not have to take place before that period is reached. However, it must be carried out as speedily as possible after the adoption of that decision.

Finally, the Court held that, in the event of a late judicial review of a decision extending detention beyond the initial six-month period, EU law does not automatically require, on that ground alone, the release of the detained person. Where the substantive conditions for detention remain satisfied and the maximum period of detention under Article 15(6) of the directive has not been reached, detention may continue.

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 16 February 2026, the Second Section of the European Court of Human Rights (ECtHR) published the communicated cases of M.R. v. Türkiye (Application no. 12965/21), and M.S. v. Türkiye (Application no. 20148/25), concerning the removal of Syrian nationals from Türkiye.

The case of M.R. v. Türkiye concerns a Syrian national who arrived in Türkiye in 2011 and was granted temporary protection. In August 2019, he was apprehended and placed in police custody and later in immigration detention. On 24 August 2019, he was returned to Syria under the voluntary repatriation scheme. The applicant alleges that his removal was a de facto deportation disguised as voluntary return and that it exposed him to a real risk of ill-treatment. He further complains of unlawful deprivation of liberty, lack of procedural safeguards, the absence of an effective remedy to challenge his detention and removal, and impact on his private and family life, invoking articles 2,3,5,8,13 of the Convention and Article 1 of Protocol No.7 thereof. 

The Court asked the parties to clarify the applicant’s alleged minor status, the voluntariness of his return and the prior assessment of the risk under Articles 2 and 3 ECHR, as well as the lawfulness of his detention and the availability of effective remedies.

The case of M.S. v. Türkiye concerns three Syrian nationals who fled to Türkiye in 2013–2014 and were granted temporary protection. The applicants were issued deportation orders to designated safe third countries or to return voluntarily to Syria. Two of the applicants were subject to security restrictions, and one was alleged to have links with terrorist organisations. Following these orders, all applicants were placed in administrative detention. The applicants challenge the deportation orders, arguing that the domestic authorities failed to conduct an adequate “safe third country” assessment, particularly regarding the risk of chain refoulement to Syria, and claim that removal would disproportionately interfere with their established family and private life in Türkiye. The first applicant also raises concerns about the lack of effective remedies to challenge the lack of assessment of his alleged risk of ill-treatment and the interference with his family life.

The Court asked the parties to clarify, inter alia, whether the planned expulsions would expose the applicants to a real risk of treatment contrary to Articles 2 and 3 ECHR.

On 30 January 2026, the Second Section of the European Court of Human Rights (ECtHR) communicatedthe application of D.J. v Türkiye (Application no. 37547/22). The case concerns the alleged unlawfulness of the applicant’s deprivation of liberty and his removal to Uzbekistan.

The applicant, an Uzbek national of Turkmen ethnic origin who identifies as an activist for the independence of Karakalpakstan, was arrested during a demonstration in Istanbul in 2020. Removal orders were issued after that but later annulled due to the lack of a proper risk assessment. He subsequently lodged an application for international protection and, in December 2021, informed the authorities that he had been subjected to harassment, surveillance and death threats, prompting a criminal investigation. In January 2022, he was allegedly apprehended by undercover police officers, held without access to his lawyer or relatives and without being informed of the reasons for his apprehension, before being placed in immigration detention and deported to Uzbekistan on the same day. The Constitutional Court later declared his complaints inadmissible for failure to exhaust domestic remedies.

The applicant submitted complaints under  Articles 2, 3, 5 and 13 of the Convention, as well as Article 1 of Protocol No. 7. The Court asked the parties to clarify whether the domestic authorities conducted an adequate assessment of the alleged risk of death or ill-treatment prior to the applicant’s removal, whether he had access to an effective remedy capable of preventing his deportation, and whether his apprehension and deprivation of liberty complied with the requirements of Article 5 of the Convention.

On 23 January 2026, the Committee Against Torture of the United Nations (CAT) published its decision in the Communication No. 1079/2021 submitted by A.A. against Australia. The communication concerns the lawfulness of prolonged detention in Australia and at the Manus Regional Processing Centre in Papua New Guinea, and the possible accountability of Australia for alleged violations of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter, the Convention).

The complainant, an Iranian national, arrived in Australia in July 2013 and was transferred under a migration cooperation agreement to the Manus Detention Centre in Papua New Guinea, where he was subjected to harsh detention conditions and torture. He was temporarily returned to Australia in 2019 for medical treatment but remained detained administratively until 2022. The applicant claimed that his detention in both Australia and Papua New Guinea was inhuman and degrading and caused him severe physical and mental suffering.

The Committee found that the complainant suffered torture and inhuman treatment while detained at the Manus Regional Processing Centre in Papua New Guinea. Although these acts occurred outside Australian territory, the Committee noted that Australia exercised effective control over the detention system through its central role in designing the migration arrangements, providing full funding, and establishing the overall framework and operational structure of the centre. Even if direct operational control by Australian agents was absent, the Committee held that Australia remained responsible, reflecting both the principle of effective control and the doctrine of joint responsibility under international law. It further observed that Australia failed to take measures to prevent acts of torture, to investigate and punish abuses, and to ensure adequate medical care during his detention, hence constituting a violation of Article 2(1), read in conjunction with Article 1(1) of the Convention.

The Committee also found that the complainant’s administrative detention in Australia was not justified, necessary, or proportionate, and lacked adequate review, thereby amounting to inhuman and degrading treatment, in violation of Article 16(1) of the Convention.
Finally, the Committee recommended that Australia provide the complainant with redress, including compensation, rehabilitation, and guarantees of non-repetition, and take measures to prevent similar violations in the future.

On 3 February 2026, the Third Section of the European Court of Human Rights (ECtHR) published its judgment on the case of O.H. and Others v. Serbia (Application no. 57185/17). The case concerned the removal of Afghan applicants to Bulgaria after they had expressed their intention to seek asylum in Serbia.

On the 3 February 2017, the applicants were arrested and detained at the Gradina Border Police Station on the grounds of illegal border crossing. However, the Pirot Misdemeanour Court discontinued the proceedings recognising the intention of the applicants to seek asylum and issued asylum-intention certificates to them, serving as temporary residence permits. Despite this, the police transported the applicants to the Bulgarian border, confiscated their documents, and forced them to collectively cross the border at night.

In relation to the complaints under Article 4 Protocol 4, the Court recalled the two-tier test established in N.D. and N.T. v. Spain for assessing collective expulsions following unauthorised border crossings. It emphasised, however, that the present case differed. The applicants’ arbitrary removal by the police was entirely unrelated to their initial unauthorised entry into Serbian territory. Moreover, the Constitutional Court already found that the domestic authorities had expelled the applicants without a prior examination of their removal on an individual basis, which had violated the prohibition of collective expulsion in respect of the applicants. The Court therefore agreed with this assessment and found a violation of Article 4 of Protocol No. 4.

Regarding the removal of the applicants from Serbia under Article 3, the Court recalled the principle of non-refoulement inherent in Article 3 ECHR and reiterated that, where an asylum seeker is removed to a third country without an examination of the asylum claim on the merits, the authorities must assess whether the person will have access to an adequate asylum procedure there. As the Serbian authorities expelled the applicants without such assessment, the Court found a violation of the procedural limb of Article 3. It further noted that the manner of their removal, including being taken to the border during freezing conditions, amounted to a violation of the substantive limb of Article 3. By contrast, it found that, although the applicants had been held in inadequate detention conditions, the short duration of their detention did not reach the threshold of severity required under Article 3 and found this complaint manifestly ill-founded.

Concerning the lawfulness of the their detention under Article 5(1) ECHR, the Court noted that the applicants’ initial detention during the misdemeanour proceedings was lawful. However, their continued detention from the end of those proceedings until their expulsion from Serbia had no legal basis, as the applicants should have been taken to an asylum reception facility, but were instead driven to the border and expelled in an arbitrary manner. Hence, the Court found a violation of Article 5(1) of the Convention. Finally, the Court found a violation of Article 5(4) of the Convention, since the police failed to provide them with legal assistance effectively, hence, deprived them of the possibility to challenge the lawfulness of their detention.

The Court also decided not to examine the admissibility and merits of the complaints under Article 13, in conjunction with Articles 3 and Article 4 Protocol 4 of the Convention.

On the 1st of December 2025, the European Court of Human Rights (ECtHR) communicated the application of O.M. v. Greece (Application no. 14354/21), concerning the lawfulness of the detention of an Afghan national who arrived on Lesvos on 30 August 2019 and was detained with a view to his readmission to Türkiye .

The applicant alleged that he was subjected to unlawful and arbitrary detention under the Greek authorities, that he was not promptly informed of the reasons for his detention in a language he could understand, and that the judicial revision of his detention was ineffective. The applicant also raised concerns under Article 8 regarding the prolonged uncertainty and vulnerability caused by the delays in processing his international protection request, which he argued had significant negative consequences on his mental health and well-being.

The Court asked the parties to clarify whether the applicant’s detention complied with the requirements of the Convention and domestic law, including the availability of effective judicial review (Arts. 5(1) and 5(4)). It also raised questions as to whether the length of detention and delays in examining the asylum claim affected the applicant’s private life (Art. 8), and whether an effective remedy was available to challenge the situation (Art. 13). The parties were further invited to provide information on the handling of the asylum procedure during and after the period of detention.