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(Area of freedom, security and justice - Directive 2008/115/EC - Common standards and procedures for returning illegally staying third-country nationals - legal consequences of failing to respect the rights of the defence in a decision extending detention for the purpose of removal - does not automatically lift the detention)

Facts of the case

The British High Court decided this week that a group of Tamils the UK Border Agency intended to deport back to Sri Lanka should stay in the United Kingdom until an upcoming Country Guidance case concerning the safety of returned failed asylum seekers in Sri Lanka is decided. As the High Court considered that the guidance on Sri Lanka was being considered virtually afresh and that the existing country guidance will have to change, the suspension on the removal of all Tamil failed asylum seekers was ordered.

The case concerns an asylum seeker who entered the EU illegally via Greece, did not ask for asylum there and traveled on via the Former Yugoslav Republic of Macedonia and Serbia to Hungary and Austria. He then asked for asylum in Austria. The question was whether or not Greece was still the responsible Member State under Art. 10.1 of the Dublin Regulation, even though the asylum seeker had left the territory of the Member States and re-entered it, or if by leaving the Member States’ territory the link to Greece’s responsibility had “broken” and Hungary was now responsible.

The applicant is a Georgian national. She entered Greece in 2005 with a three-month residence permit which she overstayed. In 2009 she was arrested and placed in detention with a view to her expulsion. The authorities decided on her expulsion and ordered her detention pending execution for a maximum of six months.  While in detention, she submitted an asylum application. She repeatedly challenged her detention, complaining at the same time about her detention conditions.