The legality of the detention of third-country nationals in order to ensure the passing back to the Member State where they enjoy international protection

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 written observation and the expert opinion were sent to the CJEU on 16 December 2019. The expert opinion will be published as soon as the CJEU has issued its judgment in this case.