CJEU - C 18/16, K., 14 September 2017

Facts:

On 17 December 2015, the applicant made an application for asylum in the Netherlands. By a decision handed down that day, he was detained, in accordance with Article 59b (1)(a) and (b) of the Law on Foreign Nationals, adopted in transposition of the first subparagraph of Article 8(3)(a) and (b) of the Receptions Conditions Directive. That decision was based on the need to establish the identity or nationality of the applicant, and to obtain data necessary for the assessment of his application, as there was a risk of him absconding.

On 17 December 2015, the applicant lodged an appeal against the decision ordering his detention arguing that no return decision had been adopted in relation to him, and claiming that the first subparagraph of Article 8(3)(a) and (b) of Directive 2013/33 is contrary to Article 5 of the ECHR and, therefore, to Article 6 of the Charter.

In those circumstances, the referring Court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘Is the first subparagraph of Article 8(3)(a) and (b) of Directive 2013/33 valid in the light of Article 6 of the Charter:

(1)      in a situation where a third-country national is detained under the first subparagraph of Article 8(3)(a) and (b) of that directive and, under Article 9 of Directive 2013/32, has the right to remain in a Member State until a decision on his asylum application has been made at first instance, and

(2)      given the Explanation relating to the Charter of Fundamental Rights that the limitations which may legitimately be imposed on the rights in Article 6 of the Charter may not exceed those permitted by the ECHR in the wording of Article 5(1)(f), and the interpretation by the European Court of Human Rights of the latter provision in Nabil and Others v. Hungary , that the detention of an asylum-seeker is contrary to the aforementioned Article 5(1)(f) if such detention was not imposed with a view to deportation?’

Decision & reasoning:

The CJEU found that the detention of an applicant in order to determine or verify his or her identity or nationality is necessary to ensure the proper functioning of the Common European Asylum System, namely to contribute to preventing secondary movements.

Moreover, under that Directive, detention is subject to compliance with a series of conditions and is only justified under a circumscribed framework. Specifically: Member States may not hold a person in detention for the sole reason that he has made an application for international protection; detention may be ordered only when it proves necessary and on the basis of an individual assessment of each case, if other less coercive alternative measures cannot be applied effectively; Member States are to 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; an applicant is to be detained only for as short a period as possible and may be kept in detention only for as long as the grounds set out in Article 8(3) of that directive are applicable; when a decision is taken to detain an applicant, significant procedural and legal safeguards must be observed; the decision must state, in writing, the reasons in fact and in law on which it is based and certain information must be provided to the applicant in a language he understands or is reasonably supposed to understand; Member States must establish a procedure for review by a judicial authority of the legality of the detention.

Therefore, the CJEU concluded that the EU legislature struck a fair balance between on the one hand, the applicant’s right to liberty and, on the other, the requirements relating to the identification of that applicant which are necessary to the functioning of the Common European Asylum System.

Finally, the Court found that the request by the referring Dutch court does not contain elements allowing it to be concluded that the facts at issue are covered by Article 5(1)(f) ECHR, since the applicant in the main proceedings was not subject to a return decision. However, the Court put forward that Article 5(1)(f) ECHR does not preclude necessary detention measures being taken against third-country nationals who have made an application for international protection, provided that such a measure is lawful and implemented in accordance with the objective of protecting the individual from arbitrariness; and that provision, whose scope is strictly circumscribed, satisfies those requirements.

Outcome:

The examination of the first subparagraph of Article 8(3)(a) and (b) of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection has disclosed nothing capable of affecting the validity of that provision in the light of Articles 6 and 52(1) and (3) of the Charter of Fundamental Rights of the European Union.

Observations/comments:

The Court concurred with the Opinion of Advocate General Sharpston that the proper interpretation of these provisions are in line with the safeguards under Article 6 CFR.