coupled with the lack of concrete definition of what constitutes a “longer period” may cause
undue, prolonged detentions.
A definition or range of what is considered “exceptionally large” number of applicants is
needed to further clarify what is allowable for a longer period of judicial review. The definition
should be broad, understanding that States do not have identical capacities. This number should
be determined by a formula, which would take into account a State’s capacities to handle
applications and an estimate of the number of workers each State would designate to process
applicants. The calculation is obviously a difficult task, but such broad definitions would
facilitate agencies in determining priorities and deadlines of applications, which, in turn, would
help curb unjustified detentions.
The RD only provides for a detention term of six months or 12 months. The latter term
length is only in cases where there is a lack of cooperation from the applicant or a delay for
obtaining documents from a third country. However, it is unclear if such terms apply to the
situation of an exceptionally large number of applicants. The Directives must be amended to
clarify if the terms apply or not in that situation. Further, there needs to be clarification on what
makes a delay reasonable under the circumstances. Delays may vary per each State’s procedure,
but a delay on purpose should render the prolonged detention in violation and unjustifiable.
One of the goals of detention is for status adjudication or to facilitate a return.
Unreasonable delays based on domestic procedures should not justify prolonged detention, as in
that case, the State, and not the individual causes the undue delay. This issue also highlights the
need for inter-State cooperation. The Directive likely foresees such delays as inevitable since
they are included in the provisions. To facilitate the process and to avoid unjustified detention,
there needs to be stronger cooperation between Member States to obtain documents. This can be
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