Case summaries

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 situation in which an appeal by a foreigner against a detention decision is declared ‘without object’, solely on the ground that a new detention order has been issued, does not offer the guarantees of effectiveness and promptness required by article 5 §4 of the Convention. 

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.

1. A change of the destination country in a return decision by an administrative authority should be regarded as a new return decision requiring an effective remedy in compliance with Article 47 CFREU.

2. The national legislation providing for a safe transit country ground applicable in the present case is contrary to EU law.

3. The obligation imposed on a third-country national to remain permanently in a closed and limited transit zone, within which their movement is limited and monitored, and which the latter cannot legally leave voluntarily, in any direction whatsoever, constitutes a deprivation of liberty, characterised as "detention" within the meaning of the Reception Conditions (RCD) and Returns Directives (RD).

4. Neither the RCD nor Article 43 of the Asylum Procedures Directive authorise detention in transit zones for a period exceeding four weeks.

5. Detention under the RCD and the RD must comply with the relevant guarantees under EU law including being based on a reasoned detention decision; consisting of a measure of last resort, following an individualised assessment of the case, its necessity and proportionality; and effective judicial review should be available. An applicant for international protection cannot be held in detention solely on the ground that they cannot support themselves. Where detention is found to contravene EU law, domestic courts may release the applicant and order the authorities to provide accommodation in line with the RCD provisions. They are empowered to do so, even if they have no clear jurisdiction under national law.

The detention of children is, in principle, permitted under Article 5 ECHR for the shortest amount of time, in appropriate conditions and facilities, and only after the Government has correctly concluded that less coercive measures are unavailable.

The complaint of the applicants under Article 3 are manifestly unfounded.