Case summaries

The case concerns an asylum seeker’s complaint under Article 5(1) about the unlawfulness of his detention without effective judicial review, pending the outcome of his asylum claim.

When detained under conditions that constitute the notion of inhuman or degrading treatment or punishment of article 3 ECHR, a person is not criminally responsible for committing the unlawful act of escaping custody.

The case concerned whether the Returns Directive precludesnational legislation providing for the imposition of a sentence of imprisonment on a third-country national on the sole ground of their illegal entry or residence in national territory.

Restriction of movement due to the lack of official identification papers can occur only when the Applicant raises sufficient doubt as regards the credibility of his declared identity, at which the actual circumstances of the case at hand need to be taken into account.

The restriction of movement due to the presence of the Applicant’s fingerprints in the EURODAC base is permissible only if the actual circumstances of the case at hand indicate that the Applicant might flee.

Legality of detention in the event of imminent deportation to Greece, if the detention was imposed before the judgment by the ECtHR in the case M.S.S. v Belgium and Greece (application no. 30696/09) and there is an enforceable expulsion decision.

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.

When a decision on detention is being made it is necessary to consider if the person is a refugee (asylum seeker) and subsequently if expulsion is feasible, and therefore the only permissible purpose of detention.