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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, 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 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 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.