On 8 November 2022, the Grand Chamber of the Court of Justice ruled in Joined Cases C-704/20 PPU and C-39/21 PPU that national courts must review the legality of a detention measure of a third country national ex officio. This means that they must declare a detention measure illegal and order the release of the migrant, also if the ground for illegality was not forwarded by the migrant. This follows from 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. 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‘. This implies that Dutch law, which provides that the detention court is bound by the grounds of appeal submitted by the third country national and thus prohibits detention courts to review the lawfulness of a detention measure ex officio, is contrary to EU law.

The preliminary questions were referred to the Court of Justice by the District Court of Den Bosch. The Migration Law Clinic has supported the lawyers with an expert opinion before the Grand Chamber of the Court of Justice of the European Union. The expert opinion first explained 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. The expert opinion can be found here.