Does seeking asylum in Europe entail spending time behind bars? In the wake of the refugee crisis and in reaction to terrorist attacks, European governments are seeking tighter control over the whereabouts of migrants and refugees. In this policy paper, Marie Walter-Franke, affiliate research fellow at the Jacques Delors Institute – Berlin, sheds light on EU rules regulating the detention of applicants for international protection, how they are currently implemented by member states, and the ongoing reform process.

The analysis identifies five main principles in EU legislation that regulate detention and assesses the level of compliance of each member state with these principles. It shows that although harmonization has established legal provisions binding member states to fairly high standards, detention continues to be entrenched in national practice for the purpose of Dublin transfers, return and border procedures, and much remains to be done to guarantee the fundamental rights of applicants in practice.

Though EU rules on detention can make a difference on the ground, the proposals published by the Commission in 2016 do not make substantial amendments to improve the existing framework. On the contrary, they propose enhanced limitations on applicants’ freedom of movement and a new detention ground, which might undermine the mitigating effect of EU harmonization on national practices.