National limitations to judicial review in migration detention cases: Prohibition, competence or requirement of ex officio review?

The Migration Law Clinic has written an expert opinion in Joined Cases C-704/20 PPU and C-39/21 PPU before the Grand Chamber of the Court of Justice of the European Union. It concerns the judicial review of detention measures imposed on the basis of the Return Directive (Directive 2008/115/EC).

Under Dutch law, the first instance and second instance courts examining the appeal against such a detention measure are bound by the grounds of appeal submitted by the third country national. They are not allowed to review the lawfulness of the detention measure ex officio. As a result, a Dutch court, which is aware that a detention measure is unlawful on a particular ground, for example because there is no prospect of removal, cannot quash this measure and release the TCN, if the TCN has not raised this particular ground to argue that the detention is unlawful. The question is whether this is in conformity with EU law.

The expert opinion has two aims. First, it explains how the prohibition to review detention measures ex officio, as it is applied in the Netherlands, plays out in practice. It demonstrates that national procedural law limits the scope of review in detention cases, to such an extent that District Courts may not be able to quash a detention measure, even if they are aware that it is unlawful. Second, the expert opinion discusses whether detention judges in Austria, Belgium, France, Germany and the United Kingdom are able or required to review a detention measure ex officio. It shows that divergent systems exist within Europe. In Germany judges order and prolong detention measures themselves, subjecting the lawfulness of the detention to a full and ex officio examination. However, in Belgium, France and the United Kingdom, judges only seem to be competent to review the detention decision of the administrative authority that imposed the detention measure on the basis of the submissions of the TCN. This underlines the importance of the preliminary questions to be answered by the CJEU and the need for a ruling on the question whether EU law permits Member States to prohibit an ex officio review in detention cases or conversely requires them to conduct such a review.

In its judgment of 8 November 2022, the Court of Justice ruled that Articles 15(2) and (3) Return Directive, 9(3) and (5) of the Reception Conditions Directive and 28(4) Dublin Regulation read in the light of Articles 6 and 47 of the Charter requires an ex officio review of the legality of a detention measure. The CJEU considered that ‘a judicial authority’s review of compliance with the conditions governing the lawfulness of the detention of a third-country national which derive from EU law must lead that authority to raise of its own motion, on the basis of the material in the file brought to its attention, as supplemented or clarified during the adversarial proceedings before it, any failure to comply with a condition governing lawfulness which has not been invoked by the person concerned‘.