5 - The Right to Liberty in the Field of Migration, Asylum and Borders

Summary

The EU has adopted several legal instruments on immigration, asylum and borders. This legislation regulates many important aspects of these matters, including the way that Member States use detention in the context of the enforcement of their immigration and asylum laws. The right to liberty under Article 6 of the Charter applies to deprivations of liberty ordered in connection with a Member State’s implementation of EU law. Though EU-level regulation of detention is relatively recent, the CJEU has had several opportunities to elaborate on the content of the right to liberty in this context. This chapter examines how the CJEU has grappled with the competing interests of safeguarding the right to liberty and ensuring an effective system for immigration, asylum and borders in the EU. In so doing, it compares and contrasts the CJEU’s approach with the right to liberty under Article 5 of the European Convention on Human Rights and the related case law of the European Court of Human Rights. The chapter concludes that, though the CJEU does in many cases keep its case law in line with that of the ECtHR, a distinct, EU-specific jurisprudence on the right to liberty is beginning to emerge.