CJEU - C‑601/15 PPU, J. N. v Staatssecretaris van Veiligheid en Justitie

Facts:

The case C-601/15 (PPU) J.N. relates to a third country national who entered the Netherlands in 1995. After the rejection of his third asylum claim in 2014 he was ordered to leave the territory of the EU, with a 10 year entry ban. He had been convicted 21 times for criminal offences and was sentenced to terms of imprisonment and fines. In January 2015 he was arrested for theft and for breach of the entry ban and was sentenced to a term of imprisonment, during which he made a fourth asylum claim. After serving his sentence he was placed in detention as an asylum seeker under domestic law transposing Article 8(3)(e) of the recast Reception Conditions Directive (RCD), on the basis that this was required for the protection of national security or public order. He challenged his detention and when the matter came before the Raad van State referred the following questions to the CJEU under the urgent preliminary ruling procedure:

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

(1)      in a situation where a third-country national has been detained pursuant to point (e) of the first subparagraph of Article 8(3) 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)      in view of the Explanations relating to the Charter 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) thereof, and in the light of the interpretation by the European Court of Human Rights of the latter provision in, inter alia, Nabil and Others v. Hungary, no. 62116/12, § 38, 22 September 2015, according to which 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 removal?’

Decision & reasoning:

The CJEU firstly accepted that the reference be dealt with under the urgent preliminary reference procedure by virtue of Mr N’s detention which was previously and would be in the future based on the Reception Conditions Directive.  

As to the question referred the Court stated that Article 5(1)(f) of the ECHR relating to detention does not bind the EU as such but instead the examination of Article 8(3)(e) should be undertaken in light of the Charter, notably Article 6, as well as the explanations relating to the Article. However, on account of Article 52(7) of the Charter and Article 6(1) of the Treaty on the European Union, the validity of Article 8(3)(e) RCD did depend on an assessment of the wording of Article 5 ECHR.    

The Grand Chamber considered that Article 8(3)( e) was a limitation on the right to liberty guaranteed by Article 6 of the Charter, however the requirements of Article 52(1) of the Charter regulating limitations of Charter rights had been adhered to by the legislator given the prescription of detention in the Directive, the exceptional nature of imposing detention under Articles 8 and 9 of the RCD and the general interest of  protecting national security and public order, which also contributes to the protection of rights and freedoms of others.

The Court subsequently turns its attention to the general principle of proportionality finding that the detention of an applicant on grounds of national security or public order does not exceed the limits of what is appropriate and necessary in order to attain the objectives of Article 8(3)(e) (Afton Chemical, C‑343/09). The requirement of “strictly necessary” has been met by a series of conditions which amount to a circumscribed framework. Detention can only be imposed when ‘required’ to protect national security and public order; detention grounds must be laid down in national law; Article 8(1) prevents detention solely on the ground of having lodged an application for international protection; and Article 8(2) requires detention to be ordered only where necessary, on the basis of an individualised assessment, and where no less coercive measures could be effectively applied. Further limitations and procedural safeguards are set out in Article 9, namely length, written decision and judicial review.

Interestingly the Court analyses the Explanatory Memorandum to the Proposal of the RCD noting that this is based upon international human rights soft law (Council of Europe Recommendation on detention of asylum-seekers, as well as UNHCR guidelines on detention). In light of these instruments the Court underscores that detention of asylum-seekers must occur ‘only exceptionally’ in an ‘individual case’ as a ‘last resort’, where ‘necessary, reasonable and proportionate to a legitimate purpose’. Moreover, the curtailed framework of detention is further codified by CJEU jurisprudence which strictly interprets the concepts of interference with national security and public order (see Case C-145/09 Tsakouridis and Case C-373/13 H.T.). Therefore, and in light of the requirement of necessity detention under national security or public order can only be undertaken “if the applicant’s individual conduct represents a genuine, present and sufficiently serious threat, affecting a fundamental interest of society or the internal or external security of the Member State concerned.”

Moreover, the appropriateness of detention with the objectives sought is fulfilled due to the fair balancing of the general interest and interference with the right to liberty in the Article, which requires that the national authority undertakes a case by case analysis before ordering detention.

Turning to the factual circumstances of the case the Court notes that detention of Mr N is based on the numerous offences he has committed in the Netherlands, a removal decision and a ten-year entry ban. Whilst the Return Directive provides a time-limit of 5 years on an entry ban it does allow Member States to extend it beyond 5 years where the individual represents a serious threat to public policy, public security or national order. The Court submits that the reasoning behind such an extension is capable of justifying detention under Article (8)(3)(e) provided the principle of proportionality is strictly adhered to.

The Court goes on to confirm that the pending expulsion order could not lapse during consideration of Mr N’s asylum application, in compliance with the requirement to achieve the Return Directive’s objective. To start afresh the return procedure were the asylum application to be rejected would frustrate the effectiveness and objective of said Directive.

Lastly, the Court, in its analysis of the ECHR in the context of the Charter, found that Nabil v Hungary did not rule out the possibility for a Member State to detain a third country national against whom a return decision with an entry ban had already been taken prior to his/her lodging an application for international protection. Pending asylum proceedings did not preclude that detention was for the purpose of deportation, as a rejection could lead to implementation of a deportation order that had already been ordered, so return proceedings were still ‘in progress’ according to Article 5(1) f) ECHR. Nonetheless, the Court highlighted that under Article 5(1) of the ECHR there can be ‘no element of bad faith or deception by the authorities’ and detention must be proportionate. According to the Court, Article 8(3)(e) satisfies those requirements.

Outcome:

Consideration of point (e) of the first subparagraph of Article 8(3) 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 no factor of such a kind as to affect 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.

Subsequent proceedings:

On 13 January 2016 the Hague District Court lodged an application for an urgent preliminary ruling from the CJEU, on the following question:

Are articles 8(3)a) and 8(3)b) of the recast Reception Conditions Directive valid in the light of Article 6 Charter of Fundamental Rights of the EU:

In a situation where a third country national is detained under to these provisions but has a right to remain in the Member State until a first instance decision has been made on his asylum claim, pursuant to Article 9 recast Asylum Procedures Directive; and

Considering the explanatory notes to the Charter the limitations that may legitimately be imposed on the rights conferred by Article 6 of the Charter shall not extend further than those set out in Article 5(1)f) ECHR and the interpretation of the ECtHR of this provision, in particular in the case of Nabil and Others v. Hungary (no. 62116/12) in which it found that detention of an asylum seeker will violate Article 5(1)f) ECHR if it is not imposed for the purpose of removal?

Observations/comments:

For further analysis of the case please see: EU law analysis, Detention of asylum-seekers: the first CJEU judgment, Steve Peers.

Other sources:

Explanatory Memorandum to the Proposal for a Directive of the European Parliament and of the Council laying down minimum standards for the reception of asylum seekers (COM(2008) 815 final)

Recommendation of the Committee of Ministers of the Council of Europe on measures of detention of asylum seekers of 16 April 2003 and on the United Nations High Commissioner for Refugees’ (UNHCR) Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers of 26 February 1999. 

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197