This project concerns three cases (CJEU Case C‐673/19), in which the Council of State has referred a preliminary question on 4 September 2019. The question concerns the detention of migrants, who have received an asylum status in another EU Member State and have applied for asylum in the Netherlands. Their asylum applications have been declared inadmissible by the Dutch authorities and they had to return to the EU Member State that has granted them international protection. The Council of State has asked the CJEU the following preliminary question:

‘Does Directive 2008/115/EC of the European Parliament and of the Council of 16 December on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348), in particular Articles 3, 4, 6 and 15 thereof, preclude a foreign national who enjoys international protection in another EU Member State from being detained under national law, given that the purpose of the detention is removal to that other Member State and, for that reason, an instruction to depart to the territory of that Member State had initially been issued but no return decision was subsequently taken?’

The expert opinion argues that that illegally staying third‐country nationals, who are detained to secure their passing back to the Member State where they enjoy international protection, fall within the personal scope of the Return Directive. Member States detaining them in order to pass them back to the Member State where they enjoy international protection, therefore act within the scope of EU law. However, the Return Directive does not provide standards for the detention of third‐country nationals in this particular case. Therefore, it leaves Member States scope to provide a legal basis for the detention of third‐country nationals in this particular case in national legislation. As Member States act within the scope of EU law by detaining these persons in order to enforce their departure, national law should be in conformity with the fundamental rights set out in the Charter of Fundamental Rights of the European Union.

The expert opinion examines the requirements that the Charter sets for the lawful detention of third-country nationals in order to ensure the passing back to the Member State where they enjoy international protection. The right to liberty guaranteed by Article 6 of the Charter is particularly relevant. The expert opinion examines the way in which the Charter permits limitations to this right. It is argued that the interpretation of the right to liberty in this context should be informed by the standards that the European legislator has set for lawful detention of third‐country nationals in the Return Directive, the Reception Conditions Directive and the Dublin Regulation.

The expert opinion can be found here: Expert opinion MLC Detention of asylum seekers with international protection def

The CJEU has issued its judgment in this case on 24 February 2021. The CJEU considered that in a situation where no return decision can be issued, such as in the case at hand “the decision of a Member State to carry out the forced transfer of a third-country national residing illegally on its territory to the Member State which has granted him or her refugee status is not governed by the common standards and procedures laid down by Directive 2008/115. Accordingly, that decision does not fall within the scope of that directive, but rather within that of the exercise of the sole competence of that Member State in matters of illegal immigration. Consequently, the same applies to the administrative detention of such a national ordered, in such circumstances, to ensure his or her transfer to the Member State in which he or she has refugee status”.

It concludes:

“Articles 3, 4, 6 and 15 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 precluding a Member State from placing in administrative detention a third-country national residing illegally on its territory, in order to carry out the forced transfer of that national to another Member State in which that national has refugee status, where that national has refused to comply with the order to go to that other Member State and it is not possible to issue a return decision to him or her”.