AG Opinion: Detention of a beneficiary of international protection with a view of a transfer to a Member State that granted such protection is permissible

Tuesday, October 20, 2020

On 20 October 2020, AG Szpunar issued his Opinion (case C-673/19) on the interpretation of Articles 3,4, 6 and 15 of the Return Directive (Directive 2008/115/EC), in the context of a preliminary reference from the Dutch Council of State regarding the detention of illegally staying third-country nationals with a view to transferring them to another Member State where they enjoy international protection.

Three third-country nationals, M, A and T, applied for international protection in the Netherlands, while they already enjoyed refugee status in another Member State. Consequently, the Dutch State Secretary for Justice and Security declared their applications inadmissible and instructed them to immediately return to the Member States that had granted them refugee status. Given the applicants’ failure to comply with this instruction, and to ensure their departure, the Dutch authorities detained the applicants. T’s detention was, on appeal, considered unlawful, while M and A’s appeals against their detention were rejected. Subsequently, the Secretary of State and M and A brought new appeals before the Council of State. 

This Court stayed the proceedings and asked the CJEU whether Articles 3, 4, 6 and 15 of the Returns Directive, preclude the detention, under national law, of a foreign national who enjoys international protection in another Member State, if the purpose of the detention is removal to another Member State and instructions to depart had been taken, unlike a return decision. 
AG Szpunar first established that the applicants fell within the scope of application of the Return Directive.
The AG offered an interpretation of the Return Directive's provisions based on literal and teleological methods of interpretation. If interpreted literally, as suggested by the AG, the case at issue falls within the scope of application of Directive 2008/115. However, the Kingdom of the Netherlands is not under an obligation to adopt a return decision, pursuant to Article 6(1) of that directive. 
Finally, the AG explained that the CJEU accepts the detention of third-country nationals under the Return Directive, on the ground of an illegal stay, in two situations that go beyond the scope of Article 15 of the Directive (see Achughbabian and Celaj). Even though he concludes that these situations do not apply in the case at hand, he underlines that the Return Directive does not preclude, in principle, the detention of the third-country nationals as long as the decision- and implementation process of the detention respects the fundamental rights of the detainee, and more specifically Articles 6 and 52 of the Charter, which he leaves for the national court to verify.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.