Administrative Court: an asylum seeker must not be detained when other supervisory measures are possible

Police and Border Guard Board (PPA) had submitted for detention of an asylum applicant and stated that in order to conduct initial proceedings and to ensure that the person in question would not leave Estonia for other EU member states, they must be admitted to the detention centre. Estonian Human Rights Centre decided to represent the asylum seeker in court at their request and pointed out the shortcomings in PPAs application. PPA had failed to explore alternatives to detention and whether or not said alternatives would help to address their concerns. Detention must be the last measure, not the first. In addition, PPA had not asked for a statement from the asylum seeker in question, but had completely relied on their own assumptions.

Typically, the asylum seekers have no representatives at the first detention, which means many important aspects will likely remain unaddressed. This can lead to their placement into the detention centre. In 2017, 10 out of 40 asylum applicants, or 25%, have been detained.

The Administrative Court highlighted that the asylum seeker has a valid visa that had been issued by an Embassy of the Republic of Estonia, hence it can be assumed that Estonian officials have already checked the background and the identity of the person, along with the validity of their documents. The court pointed out that the legal circumstances surrounding the arrival and stay of the person in Estonia were not unclear. In addition, the court explained that recipients of international protection are, as a rule, placed to the housing centre for applicants for international protection. If it is not reasonably possible to apply supervisory methods set out in VRKS § 29 paragraph 1 and there is basis for detainment according to VRKS § 361 paragraph 2, an asylum seeker may be detained in case of inevitable necessity in the detention centre for up to 2 months, with permission from the administrative court. The court stressed that detainment must be in conformity with the principle of proportionality and all important aspects related to the applicant of international protection must be taken into account on a case-by-case basis.

In the opinion of the court, PPA had failed to state reasons for why they found supervisory methods ineffective. From the information presented to the court, it was not evident that the person would not be available for international protection proceedings, if they were not detained.

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