CJEU - C 36/20 PPU, V.L. v Spain, 25 June 2020

The CJEU found that the judge assigned to rule upon the applicant’s detention should have transmitted his request for international protection to the competent authority so it could be registered, and the applicant could enjoy his rights provided by Directive 2013/33. It also found that he should not have been detained since he was protected by his applicant for international protection’s status under Directives 2013/33 and 2013/32.

Facts:

In December 2019, the applicant was intercepted in a vessel near the Spanish coast, by the Spanish Maritime Rescue Service. Forty-five third-country nationals were inside that vessel, which later disembarked in the Gran Canaria island. They were then handed over to the Comisaría de Policía Nacional de Maspalomas (Commissioner of National Police of Maspalomas) and transferred to the Jefatura Superior de Policía de Canarias (Superior Prefecture of the Canary Police). The day following their arrival, the Governmental Representation in Las Palmas ordered their expulsion.

A request to place them in a detention centre was then presented to the Juzgado n.^o 3 de Instrucción de San Bartolomé de Tirajana. The judge granted the applicant’s right to make any statement he would desire regarding his expulsion. It was only then that he said he wanted to request international protection from Spain since he was afraid of being persecuted in his home country on account of his belonging to a particular social group. The judge then asked the Brigada Provincial de Extranjería y Fronteras (Provincial Brigade of Foreigners and Borders), the UNHCR and the Governmental Representation in Las Palmas to find him a place within a humanitarian reception shelter. However, after confirming the inexistence of available vacancies, the Tribunal ordered his placement in a detention centre, which would subsequently assess his request for international protection.

The applicant appealed the Tribunal’s decision, leading to the submission of prejudicial questions to the CJEU.

Decision & Reasoning:

Article 6(1) of Directive 2013/32 enables Member States to designate the competent authority for the registration of international protection requests. Its second paragraph regulates the possibility of reception of an application for international protection by national authorities that are not competent to register them. The second paragraph of Article 6 (1) does not mention the nature of these authorities; therefore, it does not only concern authorities of an administrative nature. This can include a judicial authority called upon to rule on a request for detention of an illegally staying third-country national.

Article 6 (2) of Directive 2013/32 makes sure that those who intend to present a request for international protection can do it as fast as possible. In this case, the request for international protection could have been presented and received during the court’s hearing destinated to assess the detention order. However, the applicant was not informed of that possibility. The Spanish Government’s argument that he could present his request once inside the detention centre and that he should not do it in front of the competent judge who was going to rule on his detention is not valid. If any Member State prohibits a judicial authority from receiving an international protection request it is directly infringing the Directive’s intention to ensure the access to an effective asylum procedure in this context.

Therefore, a judge who is called upon to rule on the detention of a third-country national has legitimacy to receive an international protection request. According to Article 8 of the same Directive, that judge should provide concrete information on how to present an international protection request to the third-country national concerned, to guarantee that he/she can present it as fast as possible. That obligation is imposed to any other authority susceptible to receive these requests.

A third-country national is an applicant for international protection since the moment he/she presents the request concerned, according to Article 2 (c) Directive 2013/32. If it is presented to an authority which only has competence to receive that request without registering it, the competent authority has 6 weekdays to register it. Therefore, it is imperative that the first authority communicates that request to the latter in due time.

Finally, the Court ruled that in accordance with Article 26 (1) Directive 2013/32 and Article 8 (1) Directive 2013/33, Member States cannot detain a person just because they requested international protection. Directive 2008/115 does not apply to those who presented an international protection request, from the moment of its presentation to the point the competent authorities rule on it. If there is an appeal following a rejection decision, the Directive does not apply until the court reaches a decision on that.

According to Article 8(2) Directive 2013/33, detention in this context is only lawful if it is impossible to apply any other less coercive measures. The motive presented by the Spanish Government to justify the applicant’s detention is not within any of the reasons provided by Article 8(3), which states all the possible justifications on an applicant’s detention. Article 8(3)(d) only allows for someone who requested a State’s international protection to be detain if it is done in the context of a take back procedure, in accordance with Directive 2008/115, under specific circumstances.

Outcome:

1. The second subparagraph of Article 6(1) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection must be interpreted as meaning that examining magistrates called upon to adjudicate on the detention of a third-country national without a legal right of residence with a view to that person’s refoulement are among the ‘other authorities’ referred to in that provision, which are likely to receive applications for international protection but are not competent, under national law, to register such applications.

2. The second and third subparagraphs of Article 6(1) of Directive 2013/32 must be interpreted as meaning that examining magistrates, as ‘other authorities’ within the meaning of that provision, must, first, inform third-country nationals without a legal right of residence of the procedure for lodging an application for international protection and, second, where a third-country national has expressed his or her wish to make such an application, send the file to the competent authority for the purposes of registering that application, in order that that third-country national may benefit from the material reception conditions and health care provided for in Article 17 of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection.

3. Article 26 of Directive 2013/32 and Article 8 of Directive 2013/33 must be interpreted as meaning that a third-country national without a legal right of residence who has expressed his or her wish to apply for international protection before ‘other authorities’, within the meaning of the second subparagraph of Directive 2013/32, cannot be detained on grounds other than those laid down in Article 8(3) of Directive 2013/33.

Observations/Comments:

A Spanish investigating judge (“Juzgado de Instrucción”) refused the detention of 31 asylum applicants. In the judgment AJI 55/2020, on the case of Mr. Ba, the judge applied the findings of C-36/20 Judgment VL v. Ministerio Fiscal.

After migrants had arrived in boats, Spanish authorities had asked the investigating judge to detain them with a view on expulsion, and before a return order was issued. She underlined that, when assessing the necessity of detention, all circumstances of the case must be taken into account and, in case the circumstances underlying a possible detention would cease to exist, the principle of proportionality would justify the release of a foreigner. Referring to, inter alia, Article 5 ECHR and Article 13 of the International Covenant on Civil and Political Rights, she reiterated that, in order for the deprivation of liberty to be in accordance with law, a number of guarantees should be respected and deprivation of liberty should be subject to judicial control. Finally, she noted that, the examination of the administrative file concerned and the hearing with Mr. Ba and the Minister Fiscal, made clear that the migrant applied for asylum.

Therefore, she did not authorize the placement of the migrant in a Detention Centre for Foreigners for a period of 60 days. In turn, applicants in all these cases were moved to an open center.

Case Law Cited:

CJEU – C-555/18, K.H.K. v B.A.C., E.E.K., 7 November 2019

CJEU – C-327/82, Ekro BV Vee- en Vleeshandel v Produktschap voor Vee en Vlees, 18 January 1984

CJEU – C-470/12, Pohotovosť s. r. o. v Miroslav Vašuta, 27 February 2014

CJEU – C-328/17, Amt Azienda Trasporti & Mobilità SpA & Others v Atpl Liguria, 28 November 2018

CJEU – C-355/97, Landesgrundverkehrsreferent der Tiroler Landesregierung v Beck & Bergdorf, 7 September 1999

CJEU - C 2/19, A.P. v Estonia, 26 March 2020

CJEU: C-470/12 Pohotovost, 27 February 2014

CJEU - C-175/08, C-176/08, C-178/08 and C-179/08, Aydin Salahadin Abdulla, Kamil Hasan, Ahmed Adem, Hamrin Mosa Rashi, Dier Jamal v Bundesrepublik Deutschland

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

Attachment(s):

CURIA - Documents C 36:20 PPU.pdf

Authentic Language:

English

Country of preliminary reference:

Spain

National / Other Legislative Provisions:

Law 4/2000 (ley sobre derechos y libertades de los extranjeros en España y su integración social)

Law 12/2009 (ley reguladora del derecho de asilo y de la protección subsidiaria)

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CJEU - C 36/20 PPU, V.L. v Spain, 25 June 2020

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