Judgment of the Court of 24 February 2021, M and Others Transfert vers un État membre, C-673/19

• Date: 24 February 2021
• Year: 2021

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III. BORDER CHECKS, ASYLUM AND IMMIGRATION

Judgment of the Court (Fifth Chamber) of 24 February 2021

Case C-673/19

M and Others (Transfert vers un État membre)

Reference for a preliminary ruling – Asylum and immigration – Directive 2008/1 15/EC – Articles 3, 4, 6 and

15 – Refugee staying illegally in the territory of a M ember State – Detention for the purpose of transfer to

another Member State – Refugee status in that other Member State – Principle of non-refoulement – No

return decision – Applicability of Directive 2008/115

Three third-country nationals, M, A and T, lodged applications for international protection in the

Netherlands although they already had refugee status in other Member States, namely Bulgaria,

Spain and Germany respectively. For that reason, the Staatssecretaris van Justitie en Veiligheid (State

Secretary for Justice and Security, Netherlands) rejected their applications. Having established that

they were staying illegally in the Netherlands, the State Secretary ordered them to return immediately

to those Member States. Since the persons concerned did not comply, they were detained and then

forcibly transferred to the Member States concerned.

M, A and T brought actions before the Rechtbank Den Haag (District Court, The Hague, Netherlands).

They claim that without a return decision, within the meaning of the Return Directive,

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being issued

against them beforehand, their detention was unlawful. They therefore seek compensation for the

harm suffered as a result of the latter. While the actions brought by M and A were dismissed, T was

successful. M and A then lodged appeals before the Raad van State (Council of State, Netherlands),

while the State Secretary for Justice and Security also appealed against the judgment upholding T’s

action.

It is in that context that the referring court decided to ask the Court whether the Return Directive

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precludes a Member State from placing in detention a third-country national staying illegally on its

territory in order to carry out the forced transfer of that national to another Member State in which

he or she has refugee status, where that third-country national has refused to comply with the order

given to him to go to that other Member State and it is not possible to adopt a return decision against

him. In its judgment, the Court answered that question in the negative.

Findings of the Court

In order to arrive at that conclusion the Court recalled, in the first place, that pursuant to the Return

Directive, any illegally staying third-country national must, in principle, be subject to a return

decision.

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The latter must identify the third country to which the person concerned is to be removed,

namely his or her country of origin, a transit country or a third country to which he or she decides to

return voluntarily and which is prepared to admit that person onto its territory.

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By way of

derogation, where an illegally staying third-country national holds a residence permit in another

Member State, he or she must be allowed to return immediately to that Member State rather than

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Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and pr ocedures in

Member States for returning illegally staying third-country nationals (OJ 20 08 L 348, p. 98; ‘the Return Directive’).

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See, more specifically, Articles 3, 4, 6 and 15 of the Return Directive.

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See Article 6(1) of the Return Directive.

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See Article 3(3) of the Return Directive.