Hotspots Everywhere? Detention and Restrictions of Freedom of Movement during Border Procedures under the New Pact

Abstract The ‘New Pact on Migration and Asylum’ expands the use of border procedures for the processing of asylum applications in Europe. To prevent applicants from entering the territory and ensure their availability throughout the procedure, Member States will restrict their movement or detain them. The accurate categorisation of the applicants’ confinement at the border is essential as this determines which fundamental rights are applicable. Although the categorisation is based on a case-by-case assessment, the jurisprudence of the ECtHR and the CJEU provides Member States with guidelines. A thorough examination of prior experiences, together with a careful evaluation of the National Pact Implementation Plans, indicates that Member States will frequently resort to detention rather than restrictions on movement. The failure to assess the necessity and proportionality of detention, or to safeguard the procedural rights of detainees, may lead to a proliferation of unlawful detention practices.