CJEU - C‑474/13, Thi Ly Pham v Stadt Schweinfurt, Amt für Meldewesen und Statistik

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Country of Applicant: 
Date of Decision: 
Court Name: 
Grand Chamber

A member state cannot rely on the fact that there are no specialized detention facilities in a part of its territory to justify keeping non-citizens in prison pending their removal. The same rule applies even if the migration detainee has consented to being confined to prison.


Similarly to the case in Bero and Bouzalmate, Ms Pham, a Vietnamese national, was held in pre-removal detention in a prison for over three months. However, in this case Ms Pham had consented to being confined in a prison together with ordinary prisoners because she allegedly wanted contact with her compatriots who were detained there.

Appealing against a later extension of the detention, Ms Pham’s sought a declaration that her rights were impaired by those orders relating to the prolongation of her detention in prison.

The Bundesgerichtshof (Federal Court of Justice) decided to stay proceedings are refer the following question to the Court of Justice of the EU:

‘Is it consistent with Article 16(1) of Directive [2008/115] to place a pre-deportation detainee in accommodation together with [ordinary] prisoners if he consents to such accommodation?’

Decision & Reasoning: 

Referring to its judgment in Bero and Bouzalmate the Court reiterates that the application of the second sentence in article 16(1) cannot be justified on the ground that there are no specialised detention facilities in a federated State of Germany.

As to the issue of consent, the CJEU advances that from the wording of Article 16(1) it is clear that an unconditional obligation is laid down ‘requiring illegally staying third-country nationals to be kept separated from ordinary prisoners when a Member State cannot provide accommodation for those third-country nationals in specialised detention facilities’ [17].

Indeed, the obligation for migration detainees to be kept separated from ordinary prisoners is not coupled with any exception. Furthermore, the separation goes beyond a mere procedural rule for carrying out the detention of third-country nationals in prison accommodation and constitutes a substantive condition for that detention, without compliance of which would, in principle, be inconsistent with the Directive.


The Court ruled:

The second sentence of Article 16(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 must be interpreted as not permitting a Member State to detain a third-country national for the purpose of removal in prison accommodation together with ordinary prisoners even if the third-country national consents thereto.

Subsequent Proceedings : 



In Advocate General Bot’s opinion, which can be found here and joined together with the opinions in Bero and Bouzalmate, the AG highlights that nothing in the Returns Directive permits individual consent to prison detention. In addition, the risk of consent being given under pressure, the common absence of legal assistance, and the detainee’s lack of awareness of their rights, all lead the AG to reject the legal value of consent to ordinary prison detention.

The AG argues that the respect of human dignity, enshrined in Article 1 of the Charter of Fundamental Rights of the EU, ‘entails not making men, women and children awaiting removal look like criminals’.

Case commentary on Pham, Izabella Majcher, The EU Returns Directive and the Use of Prisons for Detaining Migrants in Europe, July 2014

Steve Peers, When can irregular migrants be detained in prisons?, May 2014 

Authentic Language: 
Country of preliminary reference: 
National / Other Legislative Provisions: 
Germany - Paragraph 62a(1) of the Law on the residence
gainful employment and integration of foreign nationals in federal territory (Gestez uber den Aufenthalt
die Erwebstatigkeit und die Integration von Auslandern im Bundesgebiet) of July 2004