CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 23 avril 2024

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THE NETHERLANDS (Application no. 71008/16)   JUDGMENT Art 5 § 1 (f) • Arbitrary, and thus unlawful, immigration detention of applicant pending assessment of his asylum application on public order grounds following (pre-trial) criminal detention on terrorism related charges • Detention with clear legal basis emanating from European Union Reception Conditions Directive • Detention not deemed necessary to enable the examination of his asylum claim upon initial entry • No steps taken to further examination of his claim during preceding ten months of criminal law detention • Public order not to be applied in such a way so as to justify excessive immigration detention after criminal law detention whilst asylum application remained undecided • Lack of sufficiently close connection between aim of preventing unauthorised entry and immigration detention   Prepared by the Registry. Does not bind the Court.   STRASBOURG 23 April 2024   FINAL   23/07/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of M.B. v. the Netherlands, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Pere Pastor Vilanova , President ,   Jolien Schukking,   Yonko Grozev,   Georgios A. Serghides,   Peeter Roosma,   Andreas Zünd,   Oddný Mjöll Arnardóttir , judges , and Milan Blaško, Section Registrar, Having regard to: the application (no.   71008/16) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Syrian national, Mr M.B. (“the applicant”), on 24 November 2016; the decision to give notice to the Government of the Kingdom of the Netherlands (“the Government”) of the complaint concerning Article 5 of the Convention; the decision not to disclose the applicant’s name; the parties’ observations; Having deliberated in private on 26 September 2023 and 12 March 2024, Delivers the following judgment, which was adopted on the latter date: INTRODUCTION 1.     The case concerns the alleged unlawfulness of the applicant’s immigration detention pending the assessment of his asylum application on the ground that he posed a threat to public order. THE FACTS 2.     The applicant was born in 1997. He was represented by Mr S.   Thelosen, a lawyer practising in Amsterdam. At the time he lodged his application he was being held in immigration detention in Rotterdam. 3.     The Government were represented by their Agents, Mr R. Böcker and   Ms   K. Adhin, both of the Ministry of Foreign Affairs. 4.     The facts of the case, as submitted by the parties, may be summarised as follows.         THE CIRCUMSTANCES OF THE CASE    Asylum application and criminal proceedings 5 .     The applicant left Syria in December 2013. In early 2014 he arrived in Türkiye, where he stayed until the end of September 2015. After travelling through several countries, he entered the Netherlands in October   2015. On 26   October 2015 he applied for asylum. A registration interview ( aanmeldgehoor ) took place on 28 October 2015. The applicant was provided with accommodation in a reception centre for asylum-seekers. 6 .     Two other asylum-seekers, who were staying in the same reception centre as the applicant, informed the police that the applicant had told them that he had been involved in a terrorist organisation in Syria and that he had, inter alia , detonated car bombs. A criminal investigation was opened in respect of the applicant. On 30 November 2015 he was arrested on suspicion of participation in an organisation which had as its purpose the commission of terrorist offences. The applicant was placed in pre-trial detention. 7 .     The applicant was summoned to stand trial on 28 July 2016 before the Regional Court ( rechtbank ) of Rotterdam on charges of participating in a terrorist organisation between March 2013 and October 2015. The public prosecutor, in his closing address to the court, argued that while there was lawful evidence for a conviction, he was not convinced, beyond reasonable doubt, that the applicant had committed the criminal offences and therefore sought the applicant’s acquittal. 8 .     On 29 August 2016 the Rotterdam Regional Court convicted the applicant on the charges against him and sentenced him to ten months’ imprisonment, with reduction of the time he had already spent in pre-trial detention. It relied on, inter alia , statements made by the applicant during the hearing, a witness statement, a tweet by the applicant from 2013 in which he had stated that he belonged to Al Qaida, WhatsApp conversations from 2015 and numerous photos and videos found on his mobile phone. In its reasoning the court explained why, unlike the public prosecutor, it considered that the charge had been lawfully and convincingly proven ( wettig en overtuigend bewezen ). Both the applicant and the public prosecutor lodged an appeal (see paragraph 18 below). 9 .     The applicant’s detention under criminal law, having attained the length of the prison sentence imposed by the Regional Court, was discontinued on 23   September 2016.    Immigration detention proceedings 10 .     On the same day the Deputy Minister of Security and Justice ( Staatssecretaris van Veiligheid en Justitie ) ordered the applicant’s placement in immigration detention ( vreemdelingenbewaring ) under section   59b(1)(b) and (d) of the Aliens Act 2000 ( Vreemdelingenwet   2000 ; see paragraph 24 below). The Deputy Minister considered that section   59b(1)(b) applied because the applicant’s detention was necessary with a view to obtaining information for the assessment of his asylum application and that section 59b(1)(d) applied because the applicant represented a threat to national security or public order in view of his criminal conviction. The detention order provided the following reasoning, inter alia : “This [detention order] is based on the following [grounds]: the person concerned has been convicted of a serious crime, namely participating in a criminal organisation with intent to commit acts of terrorism ... The person concerned was arrested shortly after his entry into the Netherlands and convicted of a crime which is perceived as very serious and [which] also concerns national security. Therefore, the person concerned poses a genuine, present and sufficiently serious threat to a fundamental interest of society. The mere fact that the person concerned has been detained as of 30 November 2015 does not mean that the threat he poses has ceased to exist, thus the threat is still present. The detention of the person concerned is necessary with a view to collecting information necessary for the assessment of his application for a residence permit [and] because of the risk that the person concerned will abscond. In relation to him it has become apparent that [1] there is a risk of absconding, [2] [he] has not entered the Netherlands in a prescribed manner, [3] [he] temporarily evaded supervision [by the immigration authorities] of aliens, in violation of legislation concerning aliens, [4] [he] has not complied with obligations imposed on him by Chapter 4 of the Aliens Act (in that he has not directly reported himself to the authorities), [5] [he] does not have a permanent or temporary home or place of residence ( woon‑of verblijfplaats ), [6] [he] does not have sufficient resources to support himself, and [7] [he] is suspected of an offence or has been convicted of one.” In the light of the reasoning above, the Deputy Minister considered that a less restrictive measure would not be appropriate. He further noted that the prospect of deportation was not a required condition for immigration detention under section   59b of the Aliens Act 2000. 11 .     On 23 September 2016 the applicant lodged an appeal against the detention order. He argued, inter alia , that it had been in breach of Article   5   §   1 (f) of the Convention because there was no prospect of his deportation to Syria in view of the general situation there. Moreover, the decision on his asylum application was still pending and no return decision had been taken. In the view of the applicant, this constituted a crucial difference between the situation in his case and that in the case of N. in which the Court of Justice of the European Union (hereinafter “the CJEU”) had delivered a judgment on 15   February 2016 (C-601/15 PPU, Grand Chamber judgment, EU:C:2016:84; see paragraph 34 below). Furthermore, he argued that by relying on the criminal conviction without taking into account the views expressed by the public prosecutor, the Deputy Minister had given insufficient reasons as to why the applicant posed a threat to national security or public order and why a less restrictive measure had not been appropriate. 12 .     By a judgment of 10 October 2016 (ECLI:NL:RBDHA:2016:12415), the Regional Court of The Hague sitting in ‘s ‑ Hertogenbosch dismissed the applicant’s appeal. The court noted that section   59b(1) of the Aliens Act 2000 transposed Article   8(3) of Directive 2013/33/EU (“the Reception Conditions Directive”; see paragraph 33 below) into domestic law. The court held, inter alia : “6.     ... In its judgment in N. , the CJEU ruled that consideration of point (e) of the first sub-paragraph of Article 8(3) of Directive 2013/33/EU disclosed no factor of such a kind as to affect the validity of that provision in the light of Articles 6 and 52(1) and (3) of the Charter of Fundamental Rights of the European Union. Although the case which prompted the Administrative Jurisdiction Division to ask the CJEU preliminary questions specifically concerned an alien who had been issued with a return decision, the CJEU phrased its response in general terms: point (e) of the first sub-paragraph of Article 8(3) of Directive 2013/33/EU is compatible with Article 6 of the Charter. The court therefore finds the applicant’s argument that that ruling is only relevant for aliens who have been issued with a return decision ill-founded. ... 8.     ... In the light of the CJEU’s conclusion that detention under Article 8(3)(e) of the Reception Conditions Directive does not violate Article 6 of the Charter and assuming that Article 6 of the Charter provides at least the same protection as Article   5 [of the Convention], it already follows that the absence of an expulsion procedure would not lead to a violation of Article 5 [of the Convention]. 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]. ...” The Regional Court, citing paragraphs 65 and 66 of Saadi v.   the   United Kingdom ([GC], no.   13229/03, ECHR 2008, see paragraph 53 below), found that the holding in immigration detention of a person who had not been authorised by the authorities to enter and stay in the country was permissible under Article 5 of the Convention, provided that it was not arbitrary. As the applicant’s entry into the Netherlands had not been authorised and he was still awaiting a decision on his asylum application, the situation at hand was not one of “authorised entry”. It further held that his detention did not contravene the prohibition of arbitrariness, given the underlying circumstance of the applicant’s criminal conviction. 13 .     The Regional Court reiterated that the prospect of the applicant’s expulsion was not a requirement for immigration detention based on section   59b of the Aliens   Act   2000. It further noted that, notwithstanding the views expressed by the public prosecutor, the applicant had been convicted by the criminal court of participation in a terrorist organisation. On this basis the Deputy Minister had been justified in regarding the applicant as a threat to public order in accordance with section 59b(1)(d) and in not applying a less restrictive measure. The Regional Court found that the Deputy Minister had failed to provide sufficient reasons as to the risk that the applicant would abscond and therefore found that the detention order could not be based on section 59b(1)(b). However, it found that section 59b(1)(d) in itself had provided a sufficient legal basis for the applicant’s detention. 14 .     A further appeal by the applicant against the Regional Court’s ruling was dismissed by the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State ( Raad van State ) with summary reasoning on 8 November 2016. No further appeal lay against that judgment.       DEVELOPMENTS AFTER THE APPLICATION TO THE COURT WAS LODGED 15 .     The applicant lodged an appeal against the continuation of his immigration detention. On 25 November 2016 the Regional Court of The Hague sitting in ‘s ‑ Hertogenbosch dismissed this appeal. On the same day the applicant lodged a new appeal against his continued detention, arguing that the Regional Court had failed to take a decision within the seven-day period prescribed by law after closing the trial examination (see Section 94 (5) of the Aliens Act, paragraph 25 below). 16 .     On 13 December 2016 the Regional Court declared the applicant’s appeal well-founded. It held that immigration detention had been in breach of this procedural rule as from 19 November 2016, lifted the detention order and awarded the applicant compensation for non-pecuniary damage in respect of the period from 19   November until 12 December 2016. 17.     On the day that the applicant’s immigration detention was lifted, a measure restricting his freedom of movement ( vrijheidsbeperkende maatregel ) was imposed on him, meaning that he had to report to the authorities every day and request leave to exit the municipality where he was staying. 18 .     In the criminal proceedings before the appellate court the applicant pleaded not guilty and the public prosecutor requested that that court quash the first-instance court’s judgment, convict the applicant as charged (see paragraph 7 above) and sentence him to three years’ imprisonment. 19 .     In a judgment of 12 December 2017 (ECLI:NL:GHDHA:2017:3575), the Court of Appeal ( gerechtshof ) of The Hague considered that it had no jurisdiction as regards one of the charges and noted that the remaining charges related only partly to the time that the applicant had been in Syria. Since the information found on his mobile phone (see paragraph 8 above) dated from the period after he had left Syria, it could not be used as corroborative evidence. In respect of the relevant charges, the applicant was acquitted for lack of sufficient evidence. The Supreme Court confirmed this judgment. 20.     The measure restricting the applicant’s freedom of movement was lifted by a judicial ruling of 18 January 2018. 21 .     On 29 March 2018 the applicant was granted an asylum-based residence permit with retroactive effect per 26 October 2015, with a validity of five years. RELEVANT LEGAL FRAMEWORK AND PRACTICE         DOMESTIC LAW AND PRACTICE    Aliens Act 2000 22.     Section 28(1) of the Aliens Act 2000 provides that the competent Minister has the authority to, inter alia , grant, reject or decline to process, an application for an asylum-based residence permit for a maximum duration of five consecutive years. 23 .     Section 8(f) of the Aliens Act 2000 provides, in so far as relevant, that pending a decision on an application for a residence permit as referred to in section 28, an alien only has lawful residence in the Netherlands in circumstances where, under or pursuant to that Act or on the basis of a judicial decision, the expulsion of the applicant should not take place until the decision on the asylum application has been given. 24 .     Section 59b of the Aliens Act 2000, in so far as relevant, provides: “1.     An alien who has lawful residence based on section 8(f) ... may, in so far as this concerns an application for the issue of a residence permit as referred to in section 28, be detained ( in bewaring gesteld ) by the Minister, if: ... (b)     the detention is necessary in order to determine those elements needed for the assessment of an application for a residence permit for a fixed period, as referred to in section 28, in particular when there is a risk of absconding; ... (d)     the alien represents a threat to national security or public order within the meaning of point (e) of Article 8(3) of the Reception Conditions Directive. ... 4.     The detention under subsection 1(d) shall not exceed six months. 5.     The Minister may extend the detention under subsection 1(d) by a maximum of nine months in the event of: (a)     complex factual and legal circumstances relating to the examination of the application for a residence permit as referred to in section 28 ... ; and (b)     a significant interest relating to public order or national security.” 25 .     Section 94 of the Aliens Act 2000, as in force at the material time, provided, in so far as relevant: “1.     [The competent] Minister shall notify the Regional Court of a decision to impose deprivation of liberty ( vrijheidsontnemende maatregel ) as referred to in section ... 59b ... no later than the twenty-eighth day after notification of that decision, unless the alien himself or herself has already lodged an appeal. As soon as the Regional Court has received the notification, the alien shall be considered to have lodged an appeal against the decision imposing deprivation of liberty. The appeal shall also constitute a claim for damages. ... 5.     The Regional Court shall deliver its decision orally or in writing. The written decision shall be taken within seven days of the conclusion of the Regional Court’s examination ...”    Aliens Decree 2000 26 .     The Aliens Decree 2000 ( Vreemdelingenbesluit 2000 ) was issued pursuant to the Aliens Act 2000 and further clarifies the application of that Act. 27 .     Section 3.1(2) of the Aliens Decree 2000 provides that, save several exceptions that are not relevant to the present case, an alien who has applied for the granting of an asylum-based residence permit (see paragraph 23 above) may not be expelled. 28.     Section 5.1a(2) of the Aliens Decree 2000 provides that an alien referred to in section 59b(1) of the Act may be detained in the interest of public order, on one of the grounds referred to in section 59b(1) of the Act (see paragraph 24 above) and provides for the applicability of Article 5.1c. 29 .     Section 5.1c (4) of the Aliens Decree 2000 provides that the ground for detention referred to in section 59b(1)(d) of the Act applies in any case if there is an application procedure in which Article 1F of the Refugee Convention is likely to be applied.    Legislative history 30 .     The Explanatory Memorandum ( Memorie van Toelichting ) to the bill transposing the obligations arising under the Asylum Procedures Directive (see paragraph 32 below) and the Reception Conditions Directive (see paragraph 33 below) into domestic law stated that the obligation arising under the Article 9 of the Asylum Procedures Directive was already incorporated in section 8 of the Aliens Act 2000 and would be included in an amended version of section 3(1) of the Aliens Decree 2000 (Lower House of Parliament, parliamentary year 2014-15, 34 088, no.   3, p.   47). 31 .     Section 59b of the Aliens Act 2000 was introduced to transpose the obligations arising under the third paragraph of Article 8 of the Reception Conditions Directive into domestic law (pp.   33-37). With regard to section   59b(1)(d) of the Aliens Act 2000, the memorandum states as follows: “Section 59b(1)(d), equivalent to Article 8[(3)](e) of the Reception Conditions Directive, relates to situations in which there is not yet a very concrete prospect of removal – after all, the application has yet to be processed – but there is nevertheless a compelling interest, in view of the person of the alien, to detain him. Examples are aliens who have a criminal record, aliens who pose a threat to State security or aliens to whom Article   1F of the 1951 Refugee Convention might apply in the asylum procedure.”       relevant international law and practice    European Union      Asylum Procedures Directive 32 .     Article 9 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) (OJ 2013, L180, p. 60; “the Asylum Procedures Directive”) provides: “1.     Applicants shall be allowed to remain in the Member State for the sole purpose of the procedure until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. That right to remain shall not constitute an entitlement to a residence permit. ...”      Reception Conditions Directive 33 .     The relevant parts of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) (OJ 2013 L180, p.   96; “the Reception Conditions Directive”) read as follows: Article 8. Detention “1.     Member States shall not hold a person in detention for the sole reason that he or she is an applicant in accordance with [the Asylum Procedures Directive]. 2.     When it proves necessary and on the basis of an individual assessment of each case, Member States may detain an applicant, if other less coercive alternative measures cannot be applied effectively. 3.     An applicant may be detained only: ... (b)     in order to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant; ... (e)     when protection of national security or public order so requires; ... The grounds for detention shall be laid down in national law.”      Case-law of the CJEU 34 .     In the case of N. (C-601/15 PPU, Grand Chamber judgment, EU:C:2016:84) the CJEU was asked, by way of a request for a preliminary ruling, to consider the validity of point (e) of the first sub-paragraph of Article   8(3) of the Reception Conditions Directive in the light of Article 6 of the Charter of Fundamental Rights of the European Union. The case concerned a rejected asylum-seeker who, having been issued with a return decision and an entry ban, had been placed in immigration detention subsequent to the end of his criminal detention, with a view to assessing if he was fit to be heard with respect to his fourth asylum application. The CJEU noted that Article 6 of the Charter corresponded to the rights guaranteed by Article 5 of the Convention and that the limitations which might legitimately be imposed on the exercise of the rights laid down in Article 6 of the Charter could not exceed those permitted by the Convention. The relevant parts of that judgment read as follows: “50 .   Under Article   52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms. In observance of the principle of proportionality, limitations may be imposed on the exercise of those rights and freedoms only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. ... 52. ... point (e) of the first subparagraph of Article   8(3) of Directive 2013/33 does not affect the essence of the right to liberty laid down in Article   6 of the Charter. That provision of the directive does not render the guarantee of that right less secure and   ... the power that it confers on Member States enables them to detain an applicant only on the basis of his individual conduct and under the exceptional circumstances referred to in the same provision ... . 53. Given that the objective pursued by point (e) of the first subparagraph of Article   8(3) of Directive 2013/33 is the protection of national security and public order, it must be held that a measure ordering detention which is based on that provision genuinely meets an objective of general interest recognised by the European Union. Moreover, the protection of national security and public order also contributes to the protection of the rights and freedoms of others. Article   6 of the Charter states in this regard that everyone has the right not only to liberty but also to security of person (see, to that effect, judgment in   Digital Rights Ireland and Others , C ‑ 293/12 and C ‑ 594/12, EU:C:2014:238, paragraph   42). ... 55. ... the detention of an applicant where the protection of national security or public order so requires is, by its very nature, an appropriate measure for protecting the public from the threat which the conduct of such a person represents and is thus suitable for attaining the objective pursued by point (e) of the first subparagraph of Article   8(3) of Directive 2013/33. ... 63. ... it is apparent from point   4 of Section 3 of the Explanatory Memorandum to the Proposal for a Directive of the European Parliament and of the Council laying down minimum standards for the reception of asylum seekers (COM(2008) 815 final), which formed the basis for Directive 2013/33, that the ground for detention relating to protection of national security and public order   ... is based on the Recommendation of the Committee of Ministers of the Council of Europe on measures of detention of asylum seekers of 16   April 2003 and on the United Nations High Commissioner for Refugees’ (UNHCR) Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers of 26   February 1999 ... . 78 .   As the wording of [Article   5 § 1 (f) of the Convention] indicates, it permits the lawful detention of a person against whom action is being taken with a view to deportation or extradition. In this regard, although the European Court of Human Rights held in the judgment in Nabil and Others v. Hungary [no. 62116/12, § 29, 22   September 2015] that a deprivation of liberty based on [Article 5 § 1 (f) of the Convention] will be justified only for as long as deportation or extradition proceedings are in progress and that if such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under that provision, that judgment does not exclude the possibility of a Member State ordering – in such a way that the guarantees provided for by that provision are observed – the detention of a third-country national in respect of whom a return decision accompanied by an entry ban was adopted prior to the lodging of an application for international protection. 79 .     The European Court of Human Rights has also stated that the existence of a pending asylum case does not as such imply that the detention of a person who has made an asylum application is no longer ‘with a view to deportation’ – since an eventual rejection of that application may open the way to the enforcement of removal orders that have already been made ([ibid.], § 38) . 80 .     Thus, ... a procedure opened under [the Returns Directive], in the context of which a return decision, accompanied, as the case may be, by an entry ban, has been adopted, must be resumed at the stage at which it was interrupted, as soon as the application for international protection which interrupted it has been rejected at first instance and, accordingly, action under that procedure is still ‘being taken’ for the purposes of the second limb of [Article   5 § 1 (f) of the Convention]. 81 .     It should also be noted that, according to the case-law of the European Court of Human Rights relating to [Article   5 § 1 of the Convention], if the execution of a measure depriving a person of liberty is to be in keeping with the objective of protecting the individual from arbitrariness, that means, in particular, that there can be no element of bad faith or deception on the part of the authorities, that execution of the measure is consistent with the purpose of the restrictions permitted by the relevant sub-paragraph of [Article   5 § 1 of the Convention] and that the deprivation of liberty concerned is proportionate in relation to the ground relied on (see, to that effect, judgment of the European Court of Human Rights in Saadi v. the United Kingdom [GC], no. 13229/03, §§ 68-74, ECHR 2008). As is apparent from the reasoning set out in connection with the examination of its validity in the light of Article 52(1) of the Charter, point (e) of the first subparagraph of Article 8(3) of [the Reception Conditions Directive] – whose scope, in view of the context of the provision, is strictly circumscribed – satisfies those requirements. 82.   The answer to the question referred for a preliminary ruling is therefore that consideration of point (e) of the first subparagraph of Article   8(3) of Directive 2013/33 has disclosed no factor of such a kind as to affect the validity of that provision in the light of Articles   6 and 52(1) and (3) of the Charter.” 35.     In the case of K. (C‑18/16, judgment of 14 September 2017, EU:C:2017:680) the CJEU was called upon to determine the validity of points (a) and (b) of the first sub ‑ paragraph of Article 8(3) of the Reception Conditions Directive in the light of Article 6 of the Charter of Fundamental Rights of the European Union. That case concerned a foreign national who had arrived at Schiphol Airport in the Netherlands on 30   November 2015 with the intention of flying to Edinburgh on the same day. During a check of documents, carried out before he was due to board the flight to Edinburgh, he was suspected of using a false passport and remanded in custody. On 16   December 2015 the criminal court declared the action brought by the public prosecutor inadmissible and ordered K.’s release. On 17   December 2015 K. lodged an application for asylum. On the same day he was placed in immigration detention in accordance with section 59b(1)(a) and (b) of the Aliens Act 2000 in order to establish his identity or nationality and to obtain data necessary for the assessment of his application, as there was a risk of his absconding. In an appeal against the detention order, the applicant argued that Article 8(3) of the Reception Conditions Directive was contrary to Article 5 of the Convention and, therefore, contrary to Article 6 of the Charter of Fundamental Rights of the European Union. At that time no return decision had been issued against him. A request for a preliminary ruling was submitted to the CJEU. 36.     In its judgment, the CJEU considered that the fact that the applicant in the main proceedings had not been subject to a return decision appeared to exclude the possibility that action was being taken against him with a view to deportation or extradition, for the purposes of the second limb of Article   5 §   1   (f) of the Convention. The CJEU further held as follows: “52. As regards the guarantee enshrined in the first limb of [Article 5 § 1 (f) of the Convention], in accordance with which no one is to be deprived of his liberty, except in the case of the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country, as interpreted by the European Court of Human Rights, it should be noted that that guarantee does not preclude necessary detention measures being taken against third-country nationals who have made an application for international protection, provided that such a measure is lawful and implemented in accordance with the objective of protecting the individual from arbitrariness (see, to that effect, ... Saadi [cited above, §§ 64-74, and] Mahamed Jama v . Malta , [no.   10290/13, §§ 136-40, 26 November 2015]). 53. As is apparent from the reasoning set out in connection with the examination of the validity, in the light of Article 52(1) of the Charter, of the first subparagraph of Article 8(3)(a) and (b) of Directive 2013/33, that provision, whose scope is strictly circumscribed, satisfies those requirements. 54. It follows from all the foregoing considerations that the answer to the question referred is that the examination of the first subparagraph of Article 8(3)(a) and (b) of Directive 2013/33 has disclosed nothing capable of affecting the validity of that provision in the light of Articles 6 and 52(1) and (3) of the Charter.”    Council of Europe 37 .     In 2003 the Committee of Ministers of the Council of Europe adopted Recommendation Rec (2003)5 that stated, inter alia : “The aim of detention is not to punish asylum-seekers. Measures of detention ... may be resorted to only in the following situations: (a) when their identity, including nationality, has in case of doubt to be verified, in particular when asylum-seekers have destroyed their travel or identity documents or used fraudulent documents in order to mislead the authorities of the host state; (b) when elements on which the asylum claim is based have to be determined which, in the absence of detention, could not be obtained; (c) when a decision needs to be taken on their right to enter the territory of the state concerned; or (d) when protection of national security and public order so requires. ... Measures of detention of asylum-seekers should be applied only after a careful examination of their necessity in each individual case. Those measures should be specific, temporary and non-arbitrary and should be applied for the shortest possible time. Such measures are to be implemented as prescribed by law and in conformity with standards established by the relevant international instruments and by the case-law of the European Court of Human Rights. ... Alternative and non-custodial measures, feasible in the individual case, should be considered before resorting to measures of detention. ...”    United Nations 38 .     Article 1F of the Convention relating to the Status of Refugees (Geneva, 1951: “the Refugee Convention”) reads as follows: “The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.” 39.     On 13 October 1986, the Executive Committee of the United Nations High Commissioner for Refugees’ Programme adopted the following Conclusion relating to the detention of asylum-seekers (no. 44 (XXXVII) – 1986). The Conclusion was expressly approved by the General Assembly on 4 December 1986 (Resolution 41/124) and reads, insofar as relevant, as follows: “The Executive Committee, ... (b) Expressed the opinion that in view of the hardship which it involves, detention should normally be avoided. If necessary, detention may be resorted to only on grounds prescribed by law to verify identity; to determine the elements on which the claim to refugee status or asylum is based; to deal with cases where refugees or asylum-seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum; or to protect national security or public order;” ... (h)           Reaffirmed that refugees and asylum-seekers have duties to the country in which they find themselves, which require in particular that they conform to its laws and regulations as well as to measures taken for the maintenance of public order;” (...) 40 .     To give effect to the above Conclusion, the United Nations High Commissioner for Refugees (UNHCR) published Guidelines on the detention of asylum-seekers in 1995, which were revised and reissued in 2012. Guideline 4 provides that detention must not be arbitrary, and any decision to detain must be based on an assessment of the individual’s particular circumstances. Guideline 4.1 further provides: “Detention can only be exceptionally resorted to for a legitimate purpose. Without such a purpose, detention will be considered arbitrary, even if entry was illegal. The purposes of detention ought to be clearly defined in legislation and/or regulations (see Guideline 3). In the context of the detention of asylum-seekers, there are three purposes for which detention may be necessary in an individual case, and which are generally in line with international law, namely public order, public health or national security. 4.1.1 To protect public order To prevent absconding and/or in cases of likelihood of non-cooperation ... In connection with accelerated procedures for manifestly unfounded or clearly abusive claims ... For initial identity and/or security verification ... In order to record, within the context of a preliminary interview, the elements on which the application for international protection is based, which could not be obtained in the absence of detention.” THE LAW ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 41.     The applicant complained that he had been placed in immigration detention in breach of Article 5 § 1 (f) of the Convention, which reads as follows: “1.     Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (f)     the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition ...” 42.     The Government contested that argument.    Admissibility 43.     The Court notes that the application is not manifestly ill-founded within the meaning of Article   35   §   3   (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.    Merits      The parties’ submissions    The applicant 44 .     In his application to the Court, the applicant argued, relying on Nabil and Others v. Hungary (no. 62116/12, 22 September 2015), that neither the competent authorities nor the domestic courts had examined whether there was a real prospect that he would be expelled to Syria or any third country if his asylum application were to be rejected. In his view, his detention had thus been in breach of the second limb of Article 5 § 1 (f) of the Convention. In reply to the Government’s observation that the applicant’s detention had been permitted under the first limb of Article 5 § 1 (f) with a view to preventing unauthorised entry into the country (see paragraph 47 below), the applicant argued that this ground for detention had been insufficiently reflected in the domestic authorities’ decisions, and thus he could have reasonably assumed that the second limb of Article   5 § 1 (f) applied. 45.     The applicant further argued that his detention did not fall within the scope of the first limb of Article   5 § 1 (f) noting that it could not “prevent his effecting an unauthorised entry into the country” because he had already entered the territory of the Netherlands where he had applied for asylum and where according to national law he resided lawfully until a decision on his asylum application had been taken. In the applicant’s opinion the first limb of Article   5 § 1 (f) only applied to those who had been refused entry into the Netherlands and had been detained on the basis of section   6(2) of the Aliens Act 2000 in the “border procedure”. It was thus the applicant’s contention that section 59b of the Aliens Act 2000 could not serve as a legal basis for detention to prevent unauthorised entry. In that connection he relied on two arguments. Firstly, he pointed to the CJEU’s judgment in N. (see paragraph   34 above), from which he concluded that Article 8 of the Reception Conditions Directive was compatible with Article 5 § 1 (f) only in so far as it was aimed at deportation. Secondly, the applicant asserted that his case differed from Saadi (cited above) because he had entered the territory of the Netherlands over land and, after he had lodged his asylum application, he had been accommodated in a reception centre and had bee