CJEU: Irregular third-country national may be detained in prison establishment for purpose of removal following an individual examination

On 2 July 2020, the Court of Justice of the European Union published its judgement in C-18/19 concerning the detention of an irregular third-country national in a prison establishment for the purpose of removal.

The applicant is a Tunisian national living in Germany who was issued a deportation order on the grounds that he posed a danger to society due to, inter alia, his alleged radical Islamist convictions. His application for interim measures was rejected on the basis that the authorities deemed there to be a sufficient probability that he would commit a terrorist offence in Germany, and an order for his detention in a prison establishment pending removal was consequently issued. The referring court stayed proceedings and referred a question to the CJEU on the compatibility of such an order for detention with Article 16(1) Return Directive (RD). The Opinion of Advocate General Pikamäe was published on 27 February 2020.

As the Court has previously ruled, while it is for a Member State to adopt measures to ensure public order in its territory and to preserve internal and external security, this does not mean the national measures fall outside the scope of the application of Union law. It added that the second sentence of Article 16(1) RD allows for the derogation from the principle of detaining an irregularly staying third-country national in a specialised detention centre in strict circumstances. Moreover, the Court acknowledged that there are discrepancies in different language versions of this provision, and it must therefore be interpreted in light of the general purpose of the Directive, which requires, inter alia, that third-country nationals be placed in specialised detention centres.

However, the Court observed that the exceptional circumstances provided for under Article 18 (1) RD do not constitute the only grounds for a Member State to derogate from this principle. Indeed, any detention order issued pursuant to the RD must, inter alia, comply with the principle of proportionality in relation to the means and objective pursued; respect the fundamental rights of the returnee; and should be issued on the basis of a case-by-case assessment. Regarding the latter, the second sentence of Article 16(1) RD does, in fact, authorise a Member State to detain an irregularly staying third-country national in prison accommodation for the purpose of removal when the particular circumstances of the case do not permit accommodation in specialised facilities in line with the Directive’s objective. In the present case, the applicant was detained in a penal establishment and separated from ordinary prisoners on grounds of, inter alia, protecting public order and security.

The Court therefore concluded that Article 16(1) RD does not preclude national legislation which allows an irregularly staying third-country national to be held in detention in a prison establishment for the purpose of removal, if separated from ordinary prisoners, on the grounds that they represent a genuine, present and sufficiently serious threat to fundamental interests of society.

Photo: Transparency International, March 2013, Flickr (CC)

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.