Opinion of Advocate General Wathelet in the case C-534/11, Arslan, 31 January 2013

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 days as provided by Directive 2005/115/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 and apparently he left the country and disappeared without indicating any intention to pursue his asylum application. This had been rejected some months before and an appeal was still pending.

The referring Court asks the following questions:

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?

Advocate General Wathelet considers that the questions referred are inadmissible in view of the fact that Mr. Arslan was released and left the Czech Republic. Consequently, the interpretation of Union law by the CJEU would not be helpful for the referring court to resolve the dispute at national level. However, if the reference is declared admissible, the following conclusion could be reached:

In AG Wathelet's opinion, the Return Directive does not apply to a third-country national who has lodged an asylum claim as long as the procedure is not concluded. The situation of such third-country national will be governed by asylum provisions.

AG Wathelet concludes that, in case of an abusive asylum application lodged in order to prevent the effectiveness of the detention provisions under the Return Directive, the answer may be different. The mere fact that the asylum applicant is in detention cannot, of itself, lead to the automatic conclusion that the application is abusive. Rather, individual circumstances will need to be assessed carefully on a case-by-case basis. If it is established that the application is abusive, the detention of the third-country national may be continued under the Return Directive. However, his removal must not be carried out as long as the asylum procedure is on-going. The principle of non-refoulement shall continue to be respected as well as all the relevant guarantees under the Asylum Procedures Directive.

Consult the full text of the Opinion on the Court's website (not available in English). 

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. 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, the IRC or its partners.