El derecho de los migrantes rescatados en el mar que soliciten protección internacional a no ser internados

Abstract

In recent years, the amount of rescues of migrants arrived to the Mediterranean Sea and the Canarian Islands in watercrafts has in-creased. With it, controversy has surrounded their internment when they request asylum. This paper studies the regulation of internment by European legislation as interpreted by the European Court of Justice in its pronouncement of June 25, 2020. The analysis shows that the de-privation of liberty constitutes an exceptional and subsidiary measure, since migrants can only be detained if reasons for detention listed in art. 8.3 of the Reception Directive are present, and provided that there are no other alternative measures, less burdensome for the right to per-sonal liberty. In addition, a guarantee model is adopted, which estab-lishes support for the interned applicants and conceives that the right to asylum is undermined with their internment in penitenciary or custody centres whose purpose is to proceed with their return or expulsion. The jurisprudential doctrine included in the analysed judgement reinforces the protection of migrants rescued at sea, enshrining their right not to be interned when they request international protection and, therefore, the obligation of receiving countries to facilitate access to the asylum procedure and, during their processing, give them a dignified accomo-dation. The commented judgement delves into the growing tendency to approach migration processes from a humanizing perspective.