Case summaries
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.
Member States can issue a return decision together with, or right after, a negative decision on an asylum application at first instance, as long as they ensure that all judicial effects of the return decision are suspended during the time allowed to appeal and pending that appeal.
During that period, and despite being subjected to a return decision, an asylum applicant must enjoy all the rights under the Reception Conditions Directive. The applicant can rely upon any changes in circumstances affecting his claim that came up after the return decision, before the appeals authority.
The Slovenian legislature has not fulfilled its obligations under the provisions of Article 2(n) of the Dublin Regulation. The possibility of an analogous application of Article 68 of the Aliens Act-2 has a very weak basis in terms of the objective criteria required. It can only be sufficient in a particular case if in light of the specific circumstances of the case there is no doubt about the existence of the risk of absconding.
An asylum seeker, submitting his claim to a non-competent authority is considered to be staying illegally in the territory of Greece and falls within the scope of the provisions on detention of Directive 2008/115/EC and Law 3907/2011 for returning illegally staying third-country nationals for as long as his identity remains unconfirmed. The deadline for the referral of his application to the competent authorities begins when the applicant provides assistance, as dictated by his duty to cooperate, with regards to the verification of his identity.
The Respondent erred in detaining the Applicant under § 88a (1)(a) point 1 of Act No 404/2011 Coll. on the residence of aliens and amending certain other Acts in proceedings relating to administrative expulsion to the Ukraine, despite being aware of the Applicant’s intention to apply for asylum. The Respondent also incorrectly assessed whether Ukraine is a safe third country as he failed to take into account recent information on the current situation in Ukraine. Moreover, in assessing the risk of absconding, the Respondent asked improper questions. As such the Respondent's conduct violates principles of good governance.
Whether the detention of an individual under the Returns Directive for the purposes of removal is still lawful if the Applicant subsequently applies for asylum.
When determining whether the maximum period for detention pending removal under the Returns Directive is exceeded, the following periods must be included: (1) periods of detention prior to the application of the Directive by the Member State; (2) periods of detention pending an asylum claim where no decision is made to transfer the individual from ‘detention pending removal’ to ‘detention pending asylum claim’; (3) periods of detention pending judicial review of the deportation. In addition, the ‘reasonableness’ of the prospects of removal must take account of whether removal can take place within the maximum period of detention time, and once the maximum period is exceeded, the individual can no longer be detained for the purpose of removal.