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 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.
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 Court concluded on the immediate release of an Egyptian national from detention. The judgment referred to the detention conditions for vulnerable persons that suffer from serious health conditions during the Covid-19 pandemic.
Due to the COVID-19 health crisis, and especially the cancellation of flights to the applicant’s country of origin, the continuation of immigration detention is no longer required because an effective return cannot be considered anymore as a reasonable perspective.
In the midst of the health crisis, the judge of liberty and detention of the Lille Judicial Tribunal considered that the health risk for the Applicant as well as for a third party, generated by the extension of the administrative detention was disproportionate to the perspectives of return. Especially since most countries had closed their borders.
As a result, the judge held that there was no reason to extend the duration of the Applicant’s detention.
The Judge of the liberty and detention of the Nice Judicial Tribunal declared irregular the procedure during which the applicant was notified of his administrative detention more than an hour after the end of his police interrogation.
The Judge considered that the deprivation of liberty during that time had no legal foundation.
Confinement of asylum applicants in an airport transit zone is contrary to Art. 5 § 1 (f) in the absence of any domestic legal basis for the applicants’ deprivation of liberty.
Confinement of asylum seekers left to their own devices in airport transit zones under the control of border authorities, without unimpeded access to shower or cooking facilities, outdoor exercise and medical or social assistance amount to degrading and inhuman conditions under Art. 3 ECHR if protracted for a long time.
Detention in police stations, places that by their very nature are designed to accommodate people for very short durations, may amount to degrading and inhuman conditions under Art. 3 ECHR if protracted for a long time.
Detention of a person with a view to deportation is contrary to Art. 5 § 1 (f) if unlawful under the Convention or domestic law.
The CJEU clarified that the Schengen Border Code must be interpreted as not allowing Member States to equate an external border with an internal border at which controls have been reintroduced. So, the Return Directive’s exceptions for third-country national who crossed external borders do not apply to someone in the applicant’s position.