1. Member States shall not hold a person in detention for the sole reason that that person is an applicant or on the basis of the nationality of that applicant. The detention shall be based only on one or more of the grounds for detention set out in paragraph 4. The detention shall not be punitive in nature.
2. Where necessary and on the basis of an individual assessment of each case, Member States may detain an applicant, if other less coercive alternative measures cannot be applied effectively.
3. When detaining an applicant, Member States shall take into account any visible signs, statements or behaviour indicating that the applicant has special reception needs. Where the assessment provided for in Article 25 has not yet been completed, it shall be completed without undue delay and its results shall be taken into account when deciding whether to continue detention or whether the detention conditions need to be adjusted.
4. An applicant may be detained only on the basis of one or more of the following grounds:
(a) to determine or verify his or her identity or nationality;
(b) to determine the elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular where there is a risk of absconding;
(c) to ensure compliance with legal obligations imposed on the applicant through an individual decision in accordance with Article 9(1) in cases where the applicant has not complied with such obligations and there continues to be a risk of absconding;
(d) to decide, in the context of a border procedure in accordance with Article 43 of , on the applicant’s right to enter the territory;
(e) when the applicant is detained subject to a return procedure under of the European Parliament and of the Council (14) in order to prepare the return, or carry out the removal process, and the Member State concerned can substantiate on the basis of objective criteria, including that the applicant already had the opportunity to access the procedure for international protection, that there are reasonable grounds to believe that the applicant is making the application for international protection merely in order to delay or frustrate the enforcement of the return decision;
(f) when protection of national security or public order so requires;
(g) in accordance with Article 44 of .
The grounds for detention referred to in the first subparagraph shall be laid down in national law.
5. Member States shall ensure that the rules concerning alternatives to detention, such as regular reporting to the authorities, the deposit of a financial guarantee, or an obligation to stay at an assigned place, are laid down in national law.
14. Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ L 348, 24.12.2008, p. 98). ↩︎
Correlation table
| Directive 2013/33/EU | This Directive |
| Article 8(1) and (2) | Article 10(1) and (2) |
| — | Article 10(3) |
| Article 8(3), points (a) and (b) | Article 10(4), points (a) and (b) |
| — | Article 10(4), point (c) |
| Article 8(3), point (c) | Article 10(4), point (d) |
| Article 8(3), point (d) | Article 10(4), point (e) |
| Article 8(3), point (e) | Article 10(4), point (f) |
| Article 8(3), point (f) | Article 10(4), point (g) |
| Article 8(3), second subparagraph | Article 10(4), second subparagraph |
| Article 8(4) | Article 10(5) |