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5 Hum. Rts. & Int'l Legal Discourse 166 (2011)
Beyond Saadi v UK: Why the Unnecessary Detention of Asylum Seekers is Inadmissible under EU Law

handle is hein.journals/hurandi5 and id is 167 raw text is: BEYOND SAADI V UK: WHY THE 'UNNECESSARY' DETENTION OF ASYLUM SEEKERS IS INADMISSIBLE UNDER EU LAW VIOLETA MORENO-LAX* Abstract In the context of the current negotiations of the 'asylum package' and considering the existing regulation on the administrative detention of asylum seekers in EU law, this contribution aims to identify the legal difficulties that would ensue from the provisions of the recast Reception Conditions Directive, the revised Dublin Regulation and the proposed Procedures Directive, if they were adopted as they presently stand. Having regard to the different human rights instruments that have an impact on the interpretation of the right to liberty under EU law, the final purpose is to determine the meaning of 'necessity' within the EU legal order, thus identifying the parameters within which asylum detention may take place in the EU. The fundamental argument advanced here is that the EU Charter of Fundamental Rights must be interpreted not only in light of the European Convention on Human Rights, but also in terms of the autonomous requirements of EU law and the 'international obligations common to the Member States' that the Charter 'reaffirms'. Therefore, both when implementing current secondary law and when revising the regime applicable to asylum detention, regard must be had not only to the precarious standard endorsed by the European Court of Human Rights in Saadi v UK, but also to the proportionality criteria contained in both general principles ofEU law and other instruments ofhuman rights and refugee protection to which the Member States are parties. It is maintained that compliance ofEU detention rules with a strict principle ofproportionality - including a necessity requirement - is mandatory pursuant to Article 6 EUCFR. Researcher and Lecturer in Law (University of Oxford). Financial support to conduct this research was generously granted first by Fundaci6n Caja Madrid and subsequently by Fundaci6n Rafael del Pino. This manuscript was submitted for typesetting before the Commission tabled its revised proposals for a recast Reception Conditions Directive, Intersentia 166

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