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CJEU: EU law allows an asylum seeker to be detained when the protection of national security or public order so requires

J.N. first applied for asylum in the Netherlands in 1995. That application was rejected in 1996. In 2012 and 2013 J.N. made further applications for asylum. In 2014 the State Secretary for Security and Justice rejected the last of those applications, ordered J.N. to leave the EU immediately and imposed a ten-year entry ban on him. The appeal against that decision was dismissed by final judgment.

Between 1999 and 2015 J.N. was convicted on 21 charges and was sentenced to fines and terms of imprisonment for various offences (mostly theft). More recently, in 2015, J.N. was arrested for theft and failure to comply with the entry ban imposed on him. He was sentenced to a further term of imprisonment and was subsequently held in detention as an asylum seeker: the reason for that was that J.N., while serving his prison sentence, had made a fourth application for asylum.

Against that background the Raad van State (Council of State), hearing an appeal brought by J.N., has referred a question to the Court of Justice for a preliminary ruling. It has made particular mention of the case-law of the European Court of Human Rights concerning the situations in which an asylum seeker may be detained. The Raad van State is uncertain in these circumstances about the validity of the Reception Conditions Directive, under which an asylum seeker may be detained when the protection of national security or public order so requires.

The Court has yesterday given judgment in the case, which has been dealt with under the urgent preliminary ruling procedure. It finds, first, that the detention measure, for which the Reception Conditions Directive provides, genuinely meets an objective of general interest recognised by the EU. The Court points out that the protection of national security and public order also contributes to the protection of the rights and freedoms of others. The Charter of Fundamental Rights of the EU states in that regard that everyone has the right, not only to liberty, but also to security of person.

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