CJEU Judgment in case C-534/11, Arslan, 30 May 2013

Friday, October 4, 2013

(Area of freedom, security and justice - Directive 2008/115/EC - Common standards and procedures for returning illegally staying third-country nationals - Applicability to asylum seekers - Possibility of keeping a third-country national in detention after an application for asylum has been made)

Facts of the case

The main proceedings concern a Turkish national who entered Czech territory irregularly and was placed in detention for 60 days. Mr. Arslan presented an asylum application and announced his intention to exhaust every remedy against an eventual negative decision. A few weeks later, his detention was extended for another 120 days. Mr. Arslan appealed against this decision arguing that, in view of his asylum application, there was no reasonable perspective that he would be removed from the Czech Republic within the maximum delay of 180 as provided by Directive 2008/115/EC on return of third-country nationals. Therefore, the extension of his detention was contrary to that directive. Mr. Arslan appealed the negative decision before the Supreme Administrative Court, which referred to the CJEU for a preliminary ruling.

Mr. Arslan was released shortly before the end of the 120 days. His asylum application had been rejected some months before and an appeal is still pending.

Questions referred for a preliminary ruling

1.    Should Article 2(1), in conjunction with recital 9 of the preamble, 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 be interpreted to mean that this Directive does not apply to a third-country national who has applied for international protection within the meaning of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status?

2.    If the answer to the first question is in the affirmative, must the detention of a foreign national for the purpose of return be terminated if he applies for international protection within the meaning of Directive 2005/85/EC and there are no other reasons to keep him in detention?

Consideration of the questions referred
Concerning the first question, the Court recalls that the Returns Directive only applies to third-country nationals staying illegally in the territory of the Member States. Recital 9 of that same Directives excludes asylum seekers from that category. Moreover, the Asylum Procedures Directive lays down, in Article 7(1), the right of asylum seekers to remain in the territory of the state in which their application is being examined for the purpose of deciding on it. States can extend this right after a negative first-instance decision and allow the asylum seeker to stay during appeal proceedings, as provided by Article 39(3). Therefore, and even if this does not necessarily mean that states have to grant residence permits to asylum seekers, it is clear that asylum seekers have a right to remain until their application has been rejected at first instance and cannot be considered as staying  illegally. Consequently, the Court rules that [Directive 2008/115/EC] does not apply to a third-country national who has applied for international protection within the meaning of Directive 2005/85 during the period from the making of the application to the adoption of the decision at first instance on that application or, as the case may be, until the outcome of any action brought against that decision is known.

As regards the second question, the Court points out that detention of asylum seekers is governed by the Asylum Procedures Directive and the Reception Conditions Directive. These do not harmonise, at the present moment, the grounds on which detention of asylum seekers may be ordered. They establish the principle that an asylum seeker cannot be detained for the sole reason of having applied for asylum and for the rest, it is for the Member States to establish the grounds on which an asylum seeker may be detained or kept in detention. Therefore, for the time being, it is for Member States to establish, in full compliance with their obligations arising from both international law and European Union law, the grounds on which an asylum seeker may be detained or kept in detention. The Court observers that keeping in detention an asylum seeker who is subject to a returns procedure when the objective of their asylum application is to abscond, or to jeopardise the enforcement of his return, is permissible under the Asylum Procedures Directive and the Reception Conditions Directive, also because, although the Returns Directive shall not apply during the asylum procedure, a return procedure started before the lodging of the application may continue after that application is rejected. Finally, the Court notes that the mere fact that an asylum seeker is the subject of a return decision and is in detention under the Returns Directive at the time of making their application does not allow a presumption that their application has been made to jeopardise the returns procedure. Hence, the Court answers that Directives 2003/9 2005/85 do not preclude a third-country national who has applied for international protection within the meaning of Directive 2005/85 after having being detained under Article 15 of Directive 2008/115 from being kept in detention on the basis of a provision of national law, where it appears, after an assessment of a case-by-case basis of all the relevant circumstances, that the application was made solely to delay or jeopardise the enforcement of the decision and that it is objectively necessary to maintain in detention to prevent the person concerned from permanently evading his return.

Read the full text of the judgment on the website of the Court of Justice of  the European Union.

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Right to remain pending a decision (Suspensive effect)