Opinion of Advocate General Szpunar delivered on 20 October 2020.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2020:840
• Date: 20 October 2020
• Celex Number: 62019CC0673
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 20 October 2020(1)

Case C‑673/19

M,

A,

Staatssecretaris van Justitie en Veiligheid

joined parties:

Staatssecretaris van Justitie en Veiligheid,

T

(Request for a preliminary ruling from the Raad van State (Council of State, Netherlands))

(Reference for a preliminary ruling – Border controls, asylum and immigration – Directive 2008/115/EC – Return of illegally staying third-country nationals – Detention for the purpose of removal – International protection in another Member State – Absence of a return decision)

1. The present request for a preliminary ruling from the Raad van State (Council of State, Netherlands) will give the Court the opportunity to specify whether the provisions of Directive 2008/115/EC (2) preclude the detention of an illegally staying third-country national with a view to transferring him to another Member State where that third-country national enjoys international protection. I shall propose to the Court that, while a Member State can, in principle, resort to detaining the person concerned in such circumstances, it must do so in compliance with the objectives of Directive 2008/115 and with the Charter on Fundamental Rights of the European Union (‘the Charter’).

Legal framework

EU law

2. The purpose of Directive 2008/115 as defined in Article 1 thereof, headed ‘Subject matter’, is to set out common standards and procedures to be applied in Member States for returning illegally staying third-country nationals, in accordance with fundamental rights as general principles of EU law as well as international law, including refugee protection and human rights obligations.

3. Article 2 of Directive 2008/115, headed ‘Scope’, provides:

‘1. This Directive applies to third-country nationals staying illegally on the territory of a Member State.

2. Member States may decide not to apply this Directive to third-country nationals who:

(a) are subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code, [(3)] or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State;

(b) are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, according to national law, or who are the subject of extradition procedures.

3. This Directive shall not apply to persons enjoying the Community right of free movement as defined in Article 2(5) of the Schengen Borders Code.’

4. Pursuant to Article 3 (‘Definitions’) of Directive 2008/115:

‘For the purpose of this Directive the following definitions shall apply:

…

3. “return” means the process of a third-country national going back – whether in voluntary compliance with an obligation to return, or enforced – to:

– his or her country of origin, or

– a country of transit in accordance with Community or bilateral readmission agreements or other arrangements, or

– another third country, to which the third-country national concerned voluntarily decides to return and in which he or she will be accepted;

4. “return decision” means an administrative or judicial decision or act, stating or declaring the stay of a third-country national to be illegal and imposing or stating an obligation to return.’

5. Article 4 of Directive 2008/115 deals with ‘more favourable provisions’. According to its third paragraph, the directive ‘shall be without prejudice to the right of the Member States to adopt or maintain provisions that are more favourable to persons to whom it applies provided that such provisions are compatible with this Directive’.

6. Article 5 of Directive 2008/115, headed ‘Non-refoulement, best interests of the child, family life and state of health’, reads as follows:

‘When implementing this Directive, Member States shall take due account of:

(a) the best interests of the child;

(b) family life;

(c) the state of health of the third-country national concerned,

and respect the principle of non-refoulement.’

7. Pursuant to Article 6 of the same directive, headed ‘Return decision’:

‘1. Member States shall issue a return decision to any third-country national staying illegally on their territory, without prejudice to the exceptions referred to in paragraphs 2 to 5.

2. Third-country nationals staying illegally on the territory of a Member State and holding a valid residence permit or other authorisation offering a right to stay issued by another Member State shall be required to go to the territory of that other Member State immediately. In the event of non-compliance by the third-country national concerned with this requirement, or where the third-country national’s immediate departure is required for reasons of public policy or national security, paragraph 1 shall apply.

…’

8. Article 15 of Directive 2008/115, headed ‘Detention’ stipulates:

‘1. Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when:

(a) there is a risk of absconding or

(b) the third-country national concerned avoids or hampers the preparation of return or the removal process.

Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence.

2. Detention shall be ordered by administrative or judicial authorities.

Detention shall be ordered in writing with reasons being given in fact and in law.

When detention has been ordered by administrative authorities, Member States shall:

(a) either provide for a speedy judicial review of the lawfulness of detention to be decided on as speedily as possible from the beginning of detention;

(b) or grant the third-country national concerned the right to take proceedings by means of which the lawfulness of detention shall be subject to a speedy judicial review to be decided on as speedily as possible after the launch of the relevant proceedings. In such a case Member States shall immediately inform the third-country national concerned about the possibility of taking such proceedings.

The third-country national concerned shall be released immediately if the detention is not lawful.

3. In every case, detention shall be reviewed at reasonable intervals of time either on application by the third-country national concerned or ex officio. In the case of prolonged detention periods, reviews shall be subject to the supervision of a judicial authority.

4. When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately.

5. Detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a limited period of detention, which may not exceed six months.

6. Member States may not extend the period referred to in paragraph 5 except for a limited period not exceeding a further twelve months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to:

(a) a lack of cooperation by the third-country national concerned, or

(b) delays in obtaining the necessary documentation from third countries.’

Netherlands law

The Vreemdelingenwet

9. Under Article 59(2) of the Vreemdelingenwet 2000 (2000 Law on Foreign Nationals) of 23 November 2000 (Stb 2000, No 495), as amended with effect of 31 December 2011 in order to transpose Directive 2008/115 (‘the Vw’), if the documents necessary for the return of a foreign national are available or will be available within a short period of time, the interests of public order are deemed to require the detention of the foreign national, unless the foreign national has had lawful residence on the basis of Article 8, under a to e, and Article l of the Vw.

10. Under Article 62a(1)(b) of the Vw, the minister is to inform a foreign national who is not a national of a Member State and who does not or no longer has lawful residence, in writing of the obligation to leave the Netherlands of his own accord and of the period within which he must comply with that obligation, unless the foreign national is in possession of a valid residence permit or other authorisation for stay issued by another Member State.

11. Article 62a(3) of the Vw specifies that the foreign national referred to in Article 62a(1)(b) is to be ordered to return immediately to the territory of the Member State concerned. If this order is not complied with or if the immediate departure of the foreign national is required for reasons of public policy or national security, a return decision is to be issued against him.

12. Under Article 63(1) and (2) of the Vw, a foreign national who does not have lawful residence and who has not left the Netherlands on his own initiative within the period prescribed by the Vw may be deported, the minister being competent for the deportation.

13. Under Article 106 of the Vw, if the court orders the lifting of a measure involving deprivation of liberty, or if the deprivation of liberty is already lifted before the application for the lifting of that measure is examined, it may award the foreign national compensation at the expense of the State. Damage is to include the disadvantage which does not consist of financial loss. That provision is to apply mutatis mutandis if the Administrative Jurisdiction Division of the Council of State orders the lifting of the measure of deprivation of liberty.

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