CJEU clarifies asylum detention in border procedures

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April 20, 2026

CC BY-SA 3.0 © Photo by Ssolbergj (The emblem of the Court of Justice of the European Union.)

What happened at the Court

Can a Member State run an asylum border procedure in a detention centre that is not physically located at the border, and can the applicant remain there after the border procedure has expired? On April 16^th, 2026, the Court of Justice answered a practical question for EU asylum systems. In Danané and Others, the Court held that the first is possible, while the second requires a fresh legal basis and full detention safeguards.

The cases arose in Belgium, where several third-country nationals arrived by air at Brussels airport in September and October 2023 and applied for international protection shortly after arrival. Belgian authorities refused them entry and placed them in detention while their applications were examined under the border procedure. Some were held in centres such as Caricole or Sint-Gillis-Waas, which are not physically located at the border. When no final decision was taken within four weeks, the applicants were admitted to Belgian territory for the continuation of their asylum procedures, but they remained in detention under a new legal basis.

The legal difficulty lay in the relationship between geography and legal status. Article 43 of the Asylum Procedures Directive allows Member States to examine certain applications at the border or in transit zones. The Reception Conditions Directive then sets the conditions under which applicants may be detained, including the need for an individual assessment and the absence of less coercive alternatives. Advocate General Emiliou had already framed the issue as one concerning the legal fiction of non-entry, where a person is physically present on the territory but treated as not yet having entered for the purposes of the procedure.

Why it matters

The Court accepted a functional understanding of the border. It found that EU law does not prevent Belgium from treating an inland centre as a place used for border procedures, provided the designation is clear and does not weaken reception guarantees. This matters because it prevents the legality of border procedures from depending only on infrastructure at airports, ports or land crossings. At the same time, the Court drew a firm line at the expiry of the four-week period. After that point, the application may no longer be handled under the border procedure. Continued detention in the same facility is possible only if it rests on a separate ground under EU law and remains necessary, proportionate and subject to safeguards.

The judgment is therefore not simply a victory for administrative flexibility. It also shifts the main legal contest to the safeguards surrounding detention, especially in regard to the coming return hubs. Member States may be able to design border procedure systems in more flexible locations, but they must still justify each detention measure individually and inform applicants when their legal situation changes. Belgian coverage presented the ruling as backing Belgium’s approach, but the Court’s reasoning leaves room for future challenges where detention becomes automatic or poorly reasoned.

The wider relevance lies in the new Pact on Migration and Asylum. The Asylum Procedures Regulation makes border procedures a more central part of EU asylum governance and expressly contemplates designated locations within Member States. Academic commentary has warned that this development risks turning border procedures from an exceptional mechanism into a routine migration management tool. The Court here accepts that the border can operate as a legal function rather than only as a physical place, but it also makes clear that a functional border cannot become a legal blind spot.

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