In the case of M.B. v. the Netherlands (71008/16, 23.4.2024) the European Court of Human Rights found a violation of Article 5 § 1 of the Convention (right to liberty and security) in respect of an applicant who was detained pending the assessment of his application for asylum, on the ground that he posed a threat to public order. The ECtHR found that the immigration detention of the applicant had been too long, given that it was preceded by several months of criminal law detention, during which no steps were taken to assess his asylum application. The applicant’s immigration detention was thus arbitrary, and therefore incompatible with the first limb of Article 5 § 1 (f).

What makes this judgment interesting in terms of the interplay between the Convention and EU law is the fact that the domestic legal basis for the impugned immigration detention, the Dutch Aliens Act 2000, transposed in domestic law the EU Reception Conditions Directive (No 2013/33), which prompted the domestic courts to interpret the Aliens Act 2000 in light of that Directive and the case-law of the CJEU relating to it.

The first issue arising in this case was about the domestic legal basis for the applicant’s immigration detention. The Dutch Regional Court considered that this basis was provided by Section 59b(1)(d) of the Aliens Act 2000, which transposed into the Dutch legal system Article 8(3)(e) of the Reception Conditions Directive allowing detention of an applicant for international protection “when protection of national security or public order so requires”.  In reaching that conclusion, the Regional Court relied on the case-law of the CJEU relating to that provision, notably in the case of N. (C-601/15 PPU). At the same time, it pertinently noted that “the considerations of the CJEU do not take away from the fact that the treaty provisions in the [Convention] have independent effect in the Dutch legal order and that the court can also directly review the contested decision against Article 5 [of the Convention]” (§ 61).

The ECtHR accepted the domestic courts’ findings that Section 59b(1)(d) provided the domestic legal basis for the applicant’s detention. It thereby recalled its well-established case-law according to which, first, it is not competent to apply – or examine alleged violations of – EU rules unless and in so far as they may have infringed rights and freedoms protected by the Convention (§ 61) and, secondly, the interpretation of domestic law provisions, including its conformity with EU law, falls primarily to the national authorities, notably the courts (§ 62; in the same sense: § 64).

The second issue was about the conformity of that domestic legal basis with Article 5 § 1 f) of the Convention. The difficulty here was the fact that while Article 5 § 1 f), unlike Article 8(1) of the Reception Conditions Directive, allows the detention of an applicant for international protection for the period of time needed for the processing of his/her application (Saadi v. the United Kingdom), it does not allow, unlike Art. 8(3)(e) of that same Directive, their detention on grounds relating to the protection of national security or public order, which under Dutch law can last up to six months (Section 59b(4) of the Aliens Act 2000). The ECtHR noted in this connection:

“Although Article 8 (3) e of the Reception Conditions Directive permits, from an EU-law standpoint, detention when national security or protection of public order so requires, this has no bearing on the fact that Article 5 § 1 (f) of the Convention only allows for immigration detention to prevent unauthorised entry or to effect deportation.” (§ 72, emphasis added)

Consequently, the only chance for the applicant’s immigration detention to be found compatible with Article 5 § 1 f) of the Convention was for it to have, in the circumstances of the present case, a sufficiently close connection with the aim of preventing the applicant’s unauthorised entry. This, however, was denied by the ECtHR, on the ground that the national authorities had not used the time previously spent by the applicant in criminal law detention to take steps to further the examination of his application. The ECtHR stated inter alia:

“The Court can understand the legitimate concerns which exist when an asylum applicant is released from detention shortly after having been convicted on terrorism related charges. However, this cannot lead to “preventive detention”, nor can it absolve a State of its obligations under the Convention. It is moreover undisputed that during the applicant’s (pre-trial) detention between 30 November 2015 and 23 September 2016, no steps were taken to assess his asylum application, such as conducting interviews to enable a determination of his claim, including his possible exclusion from international protection on the basis of Article 1F of the Refugee Convention … Consequently, this immigration detention appears disproportionate, even unnecessary, as many of the steps required to assess the asylum application could have been taken during the criminal law detention without the need to subsequently keep the applicant in immigration detention.” (§ 73)

Thus, the ECtHR found the applicant’s detention to be arbitrary, for lack of a sufficiently close connection between his immigration detention and the aim of preventing his unauthorised entry, and therefore in breach of Article 5 § 1 of the Convention.

The following three conclusions can be drawn from this case regarding the interplay between the Convention and EU law:

1. Within one single area, here the detention of applicants for international protection, the respective levels of protection can vary between the Convention and EU law depending on the aspect considered. This calls for a differentiated analysis: whereas EU law allows the detention of applicants on grounds of national security or public order, the Convention does not; but whereas EU law does not allow detention of applicants merely to facilitate the processing of their applications, the Convention does.
2. What matters at the end of the day in Strasbourg, however, is only whether the Convention minimum protection level has been ensured by the domestic courts, without prejudice to a higher level being applied by them, notably under EU law. As the ECtHR put it, a lower level of protection, as provided e.g. by Article 8(3)(e) of the Reception Conditions Directive, has “no bearing” on the applicable higher Convention protection level.
3. This variety of legal scenarios calls for a wholistic approach which takes into account the full range of interactions between the national, EU and Convention legal orders.