Case summaries

To determine whether there is a violation of Articles 2 and 3 ECHR in the context of expulsion, the Court analyses if the Applicant has presented substantial grounds on (i) whether he faces a real risk of ill-treatment or death in the country of destination, and (ii)whether the national authorities carried out an adequate assessment of the evidence. States have an obligation to analyse the risk ex propio motu when they are aware of facts that could expose an individual to the risk of treatment prohibited by Articles 2 and 3 ECHR.  If the domestic jurisdictions didn’t carry out a proper assessment, the Court analyses the risk on its own on the basis of the parties submissions, international reports and its own findings.

States have an obligation, under Article 5 § 1 ECHR, to act with due diligence and impose a reasonable period of detention pending expulsion. Article 5 § 4 ECHR is breached if detained individuals can’t obtain a revision of their detention before a domestic court. 

The conditions of detention amounted to a violation of Article 3, in so far as the applicant remained in isolation, in a container with inadequate natural light and ventilation, for a significant amount of time and without any consideration of alternatives. The applicant’s unnecessary placement in a part of the detention facility that was reserved for Covid-19 quarantine also exposed him to health risk.

The applicant’s detention was not lawful under Article 5 (1) ECHR, as it lasted for fourteen months, the authorities were aware that the deportation was not feasible and failed to pursue the matter with diligence. Article 34 was also violated due to irregularities in the manner that legal aid was provided to the applicant and the lack of confidentiality and support during his communication with the Court while he was in detention.

The absence of food provision raised an issue of Article 3 in respect of the first applicant, given his state of total dependency on the Hungarian government during his stay at the Röszke transit zone. The physical conditions of the container in which the family stayed in, the unsuitable facilities for children, irregularities in the provision of medical services, and the prolonged stay in the area amounted to a violation of Article 3 in respect of the applicant mother and the children.

The family’s stay at the Röszke transit zone amounted to deprivation of liberty due to, inter alia, the lack of any domestic legal provisions fixing the maximum duration of the applicants’ stay, the excessive duration of the applicants’ stay and the conditions in the transit zone. Their deprivation of liberty was unlawful under Article 5 (1), as there was no strictly defined statutory basis for the applicants’ detention and no formal decision complete with reasons for detention had been issued by the Hungarian authorities.

Article 5 (4) was also violated because he applicants did not have avenue in which the lawfulness of their detention could have been decided promptly by a court.

The Return Directive does not prevent a Member State from placing in administrative detention a third-country national residing illegally on its territory, in order to carry out the forced transfer of that national to another Member State in which that national has refugee status, where that national has refused to comply with the order to go to that other Member State and it is not possible to issue a return decision to him or her.

The governmental authority is requesting an authorization to detain an immigrant after an alleged infraction of article 53 of the Organic Law 4/2000 in order to guarantee the enforcement of a possible return procedure. Following the procedures detailed in article 62 of said law, the Court assessed the particular circumstances of the case, including the risk of nonappearance and the possible existence of previous administrative sanctions of the subject, concluding that the lack of roots in the Spanish territory and the fact that he already filled in an asylum application show that the detention is not necessary in this case.

The Return Directive does not preclude Member States from introducing legislation that imposes a custodial sentence on individuals for whom the return procedure has been exahusted but still remain in the territory, where the criminal act consists in an unlawful stay with notice of an entry ban, issued in particular on account of that third-country national’s criminal record or the threat he represents to public policy or national security.

However, such a provision in national legislation is permitted if the criminal act is not defined as a breach of such an entry ban and the legislation itself is sufficiently accessible, precise and foreseeable in its application in order to avoid all risk of arbitrariness.

In three conjoined judicial reviews concerning the legality of the Home Secretary’s exercise of her power under paragraph 9 of Schedule 10 of the Immigration Act 2016 to provide accommodation to those who are granted immigration bail, it was held that each of the three claimants had been unlawfully denied such accommodation, and that the relevant policy was systemically unfair.

The Court decided that the applicants’ arrest and detention were unlawful under Article 5 of the Convention. The eighth applicant’s complaint under Article 3 that she, a minor at the time, was not provided with adequate care in detention in connection with her pregnancy and the miscarriage she suffered was not accepted by the Court.

EU law does not preclude national legislation that allows an illegally staying third-country national to be detained in prison accommodation for removal, on the ground that he poses a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society or the internal or external security of the Member State concerned. The detainee should be kept separated from ordinary prisoners.

The CJEU found that the judge assigned to rule upon the applicant’s detention should have transmitted his request for international protection to the competent authority so it could be registered, and the applicant could enjoy his rights provided by Directive 2013/33. It also found that he should not have been detained since he was protected by his applicant for international protection’s status under Directives 2013/33 and 2013/32.