27 the applicants, accompanying medical staff to measures cannot be applied effectively”. Finally, applicant health checkups in the facility, deliv- Article 8 (3) provides an exhaustive list of rea- ering meals, checking the rooms during shift sons under which Member States may detain changes, and guarding the doors to the facility asylum seekers. That list includes a detention if so that no applicants leave, and no unauthor- the protection of national security or public or- ized person comes inside. Lastly, according to der so requires. Art. 8 RCD was transposed into the authorities those quarantined have no legal Art. 50 the Asylum Code. status in Greece and are not allowed to reside freely in the country, therefore, individuals quarantined on Chios have no actual or mean- In other words, although EU law does provide grounds for detaining asylum seekers, it makes clear that detention should be the exception, ingful choice to leave the facility. and the state authorities must establish that the Thus, the quarantine constitutes a detention detention is necessary and no alternative, less under the RCD as well as the ECHR. coercive measures are available. b. Quarantine as Unlawful and Arbitrary Detention Additionally, the RCD and Greek asylum law Detention of asylum seekers is allowed under “competent national authorities having previ- EU and international law if certain precondi- ously determined, on a case-by-case basis, tions are met; it must be authorized by law and whether the threat that the persons concerned cannot be arbitrary. Any detention that is un- represent to national security or public order lawful and arbitrary is expressly prohibited. corresponds at least to the gravity of the inter- Article 8 RCD provides the grounds and precon- ference with the liberty of those persons that ditions for detaining asylum seekers. The RCD such measures entail.”62 starts from the general standard that Member Protection of public health may also justify a re- States “shall not hold a person in detention for striction of liberty under European Human the sole reason that he or she is an applicant for Rights Law, 63 but this ground for detention international protection”. Article 8 (2) then goes must be interpreted narrowly.64 A detention un- on to establish a necessity test for detaining asy- der Article 5 is legitimate if (1) it is not discrimi- lum seekers stating that “when it proves neces- natory65, (2) if a medical report finds that the sary and on the basis of an individual person detained has the disease in question– assessment of each case, Member States may mere suspicion is not enough–and that the dis- detain an applicant, if other less coercive ease is infectious,66 and (3) is a measure of last only allows for a depri vation of liberty when CJEU, Judgment of 15 February 2016, C601/15 PPU, JN, para. 68 et seq. ECHR Art. 5(1)(e). Note that Art. 5(1)(f) of ECHR is not applied in this instance as the authorities have openly stated that the quarantine is for public health reasons, not to prevent “unauthorized entry” into the country. 64 Cf. for refugees, for example, explicitly Art. 2 Geneva Refugee Convention. On this provision, see Rohmann, Art. 2, in Hruschka, Commentary on the Geneva Refugee Convention, forthcoming 2021. 65 This includes non-nationals. General measures to protect public health are only permissible if they do not discriminate against the potentially affected person based on their status. Cf. also Commission Communication v. 17/04/2020, 2020/C 126/02, p. 18. 66 ECtHR, Judgment of 24 October 1979, 6301/73, Winterwerp v The Netherlands, para. 37 et seq. See also Elberling, Art. 5 ECHR, in Karpenstein/Mayer, Konvention zum Schutz der Menschenrechte und Grundfreiheiten: EMRK, 2nd edition 2015, para. 78. 62 63 ‘Quarantine of Asylum Seeker’ – A legal classification of the quarantine practice on Chios