CJEU - C 60/16, Khir Amayry, 13 September 2017

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Date of Decision: 
13-09-2017
Citation: 
C 60/16
Court Name: 
Court of Justice of the European Union
Headnote: 

The case concerns the calculation of time limits for detention for the purpose of a Dublin transfer under Article 28 of the Dublin III Regulation (DRIII).

Facts: 

Mr Khir Amayry lodged an application for international protection in Sweden on 19 December 2014. On 15 January 2015, the Swedish authorities issued a “take charge request” to Italy and Italian authorities accepted the request.

On April 2015, the Swedish authorities dismissed Mr Khir Amayry’s application for a residence permit, including his application for international protection, closed the case relating to the declaration of status and issued a ‘take charge request’ to Italy. Furthermore, taking the view that there was a significant risk of his absconding, the Board decided to detain him. The Stockholm Administrative Court dismissed his appeal finding that there was a risk that, if he were removed from detention, Mr Khir Amayry would abscond. On May 2015, the transfer decision was put into effect. Subsequently, Mr Khir Amayry returned to Sweden where he made a fresh application for international protection.

In those circumstances, the Administrative Court of Appeal for Immigration Matters decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      If an [applicant for international protection] is not in detention at the time when the Member State responsible agrees to take charge of him but is detained at a later date — on the ground that only then is the assessment made that there is a significant risk that the person will abscond — may the time limit of six weeks in Article 28(3) of the [Dublin III] Regulation … be calculated in such a situation from the day on which the person is detained or is it to be calculated from another time and, if so, when?

(2)      Does Article 28 of the [Dublin III] Regulation preclude, in a situation where an [applicant for international protection] is not in detention at the time when the Member State responsible agrees to take charge of him, the application of national rules which, in Sweden, mean that an alien may not be kept in detention pending [transfer] for longer than 2 months, if there are no serious reasons for detaining him for a longer period, and if there are such serious reasons, the alien may be kept in detention for a maximum of 3 months or, if it is probable that [the transfer] will take longer due to a lack of cooperation from the alien or it takes time to obtain the necessary documents, a maximum of 12 months?

(3)      If [a transfer] procedure is recommenced when an appeal or a review no longer has suspensive effect (see Article 27(3) [of the Dublin III Regulation]), does a new period of six weeks for implementation of the transfer start to run or is there a deduction to be made, for example, of the number of days the person has already spent in detention after the Member State responsible agreed to take charge of him or take him back?

(4)      Is it of any importance whether the [applicant for international protection] who appealed against a transfer decision has not himself applied for the implementation of the transfer decision to be suspended pending the result of the appeal (see Article 27(3)(c) and (4) [of the Dublin III Regulation])?’

Decision & Reasoning: 

First and second question; The Court ruled that in relation to Article 28 DRIII, read in the light of Article 6 of the EU Charter of Fundamental Rights:

  • The period of six weeks within which to carry out the transfer shows that the EU legislature took the view that such a period could be necessary in order for the transfer of a detained person to be carried out (par. 32);
  • Detention for the purposes of carrying out the transfer would necessarily have to be for a period of less than six weeks and any detention would be completely excluded once six weeks had elapsed following that acceptance (par.34);
  • when the detention pending transfer begins after the requested Member State has accepted the take charge or take back request, the duration of the detention is not to be longer than six weeks from the date when the appeal or review ceases to have suspensive effect (par. 40)
  • the detention must be for as short a period as possible and not for longer than the time reasonably necessary to fulfil the required administrative procedures with due diligence (par. 42-44);
  • A national legislation such as that in Sweden, which allows for a detention to be maintained for 3 or 12 months until the transfer is carried out,  exceeds the period of time which is reasonably necessary for the required administrative procedures with due diligence until the transfer is carried out to be satisfied; by contrast Article 28 does not preclude a national legislation allowing for a detention to be maintained for a period of 2 months where that detention begins after the requested Member State has accepted the take charge request, as long as the detention does not go beyond the time which is necessary to carry out the transfer (par. 46-47);
  •  However, in the situation where, after the detention has begun, the review or the appeal loses its suspensive effect in accordance with Article 27(3) of the DRIII, that detention may not be maintained for more than six weeks from that date (par. 48).

Third question:

the number of days during which an applicant was already detained after a Member State has accepted the take charge or take back request need not be deducted from the six week period established by that provision, from the moment when the appeal or review no longer has suspensive effect (par. 59)

Fourth question:

  • the deadline for carrying out the transfer, established by the third subparagraph of Article 28(3) DIII runs from the moment when the appeal or review no longer has suspensive effect, taking account of the fact that, when an appeal or a review brought against a transfer decision has suspensive effect, it is possible to proceed with the transfer only once that suspensive effect has been lifted (par.61-62);
  • The deadline for carrying out the transfer should be calculated from the moment of acceptance by another Member State of the take charge or take back request;
  • Detention may remain necessary pending the lodging of an appeal or a review, but extending that detention for more than six weeks after the intervention of a final decision on appeal or review would not be justified.

The six-week period also applies when the suspension of the execution of the transfer decision was not specifically requested by the person concerned.

Outcome: 

1.  Article 28 of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, read in conjunction with Article 6 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that:

–        it does not preclude national legislation, such as that at issue in the main proceedings, which provides that, where the detention of an applicant for international protection begins after the requested Member State has accepted the take charge request, that detention may be maintained for no longer than two months, provided, first, that the duration of the detention does not go beyond the period of time which is necessary for the purposes of that transfer procedure, assessed by taking account of the specific requirements of that procedure in each specific case and, second, that, where applicable, that duration is not to be longer than six weeks from the date when the appeal or review ceases to have suspensive effect; and

–        it does preclude national legislation, such as that at issue in the main proceedings, which allows, in such a situation, the detention to be maintained for 3 or 12 months during which the transfer could be reasonably carried out.

2.      Article 28(3) of the Dublin III Regulation must be interpreted as meaning that the number of days during which the person concerned was already detained after a Member State has accepted the take charge or take back request need not be deducted from the six week period established by that provision, from the moment when the appeal or review no longer has suspensive effect.

3.      Article 28(3) of the Dublin III Regulation must be interpreted as meaning that the six week period beginning from the moment when the appeal or review no longer has suspensive effective, established by that provision, also applies when the suspension of the execution of the transfer decision was not specifically requested by the person concerned.

Observations/Comments: 

The CJEU reached the same conclusions as Advocate General Bot in his Opinion.

Case Law Cited: 

CJEU - C-237/15 Lanigan

CJEU - C-19/08 Migrationsverket v Edgar Petrosian and Others (UP)

CJEU - C- 84/12, Rahmanian Koushkaki v Bundesrepublik Deutschland

CJEU - 15 February 2016, J.N., C‑601/15 PPU

CJEU - 25 January 2017, Vilkas, C‑640/15
Attachment(s): 
Authentic Language: 
English
Country of preliminary reference: 
Sweden
National / Other Legislative Provisions: 
Sweden - Swedish law: utlänningslag (Law on aliens
SFS 2005
No 716)