CJEU - C-534/11 Mehmet Arslan v Policie ČR, Krajské ředitelství policie Ústeckého kraje, odbor cizinecké policie

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Country of Applicant: 
Turkey
Date of Decision: 
30-05-2013
Citation: 
C-534/11
Court Name: 
Third Chamber of the CJEU
Keywords: 
Headnote: 

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. 

Facts: 

On 1 February 2011 the Applicant was arrested and detained. On 2 February 2011 a decision was issued for his removal. On 8 February his period of detention was extended to 60 days on the ground, that in view of his past conduct, it might be presumed that he would obstruct enforcement of the removal decision. He also applied for asylum on the same day.

His detention was extended by a further 120 days on the ground that it was necessary to prepare for the enforcement of the decision to remove him, in view of the fact, that his application for international protection was still on-going and it was not possible to enforce the removal decision while that application was being considered.

The referring court has some reservations as to whether an Applicant for international protection may, under Directive 2008/115, be lawfully kept in detention. In particular, it asks whether that directive should be interpreted as meaning that the detention of a foreigner for the purpose of return must be terminated if he applies for international protection. It considers that where an application for asylum has been made, detention may only be extended if a new decision, based not on Directive 2008/115 but on a provision specifically allowing the detention of an asylum seeker, is adopted. However, the referring court also expresses its concern that such an interpretation encourages the abuse of asylum procedures.

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

  1. Must Article 2(1) of, in conjunction with recital 9 in the preamble to, Directive [2008/115] be interpreted as meaning that the directive does not apply to a third-country national who has applied for international protection within the meaning of … Directive [2005/85]?
  2. If the answer to the first question is in the affirmative, must the detention of a foreigner for the purpose of return be terminated if he applies for international protection within the meaning of Directive [2005/85] and there are no other reasons to keep him in detention?
Decision & Reasoning: 

The Court found that it is clearly apparent from the wording, scheme and purpose of Directives 2005/85 and 2008/115 that an asylum seeker has the right to remain in the territory of the Member State concerned at least until his application has been rejected at first instance, and cannot therefore be considered to be ‘illegally staying’ within the meaning of Directive 2008/115, which relates to his removal from that territory.

 It follows from the foregoing that the answer to the first question is that Article 2(1) of Directive 2008/115, read in conjunction with recital 9 in the preamble, must be interpreted as meaning that that the Directive does not apply to a third-country national who has applied for international protection within the meaning of Directive 2005/85 during the period from the making of the application to the adoption of the decision at first instance on that application or, as the case may be, until the outcome of any action brought against that decision is known.

The Court stated that neither Directive 2003/9 nor Directive 2005/85 currently provides for the harmonisation of grounds on which the detention of an asylum seeker may be ordered.       Therefore, for the time being it is for Member States to establish, in full compliance with their obligations arising from both international law and European Union law, the grounds on which an asylum seeker may be detained or kept in detention.

The Court concluded that Directives 2003/9 and 2005/85 do not preclude a third-country national who has applied for international protection within the meaning of Directive 2005/85 after having been detained under Article 15 of Directive 2008/115 from being kept in detention on the basis of a provision of national law. However there needs to be a case-by-case assessment of all the relevant circumstances, that the application was made solely to delay or jeopardise the enforcement of the return decision and that it is objectively necessary to maintain detention to prevent the person concerned from permanently evading his return.

Outcome: 

Article 2(1) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, read in conjunction with recital 9 in the preamble, must be interpreted as meaning that that Directive does not apply to a third-country national who has applied for international protection within the meaning of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status during the period from the making of the application to the adoption of the decision at first instance on that application or, as the case may be, until the outcome of any action brought against that decision is known.

Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers and Directive 2005/85 do not preclude a third-country national who has applied for international protection within the meaning of Directive 2005/85 after having been detained under Article 15 of Directive 2008/115 from being kept in detention on the basis of a provision of national law, where it appears, after an assessment on a case-by-case basis of all the relevant circumstances, that the application was made solely to delay or jeopardise the enforcement of the return decision and that it is objectively necessary to maintain detention to prevent the person concerned from permanently evading his return.

Authentic Language: 
Czech
Country of preliminary reference: 
Czech Republic
National / Other Legislative Provisions: 
Czech Republic - Aliens Act (326/1999 Coll.)