Brussels, 31/05/2013 (Agence Europe) - In a ruling on Thursday 30 May 2013 in case C-534/11, the European Court of Justice (CJEU) says that asylum-seekers may be detained for the purposes of removal on the grounds of illegal stay where the application for asylum has been made with the sole aim of delaying or jeopardising enforcement of the return decision. The national authorities must, however, examine on a case-by-case basis whether that is the case and whether it is objectively necessary and proportionate to keep the asylum seeker in detention in order to prevent him from definitively evading return.
The Supreme Administrative Court, Czech Republic, asked the CJEU to interpret Directive 2008/115/EC which lays down common standards and procedures in member states for the removal of third-country nationals staying illegally in their territory, because it had a case before it of a Turk arrested for illegal stay, who had been placed in detention before being expelled and whose detention had been extended because he had lodged an request for asylum. The man appealed against the extension of his detention and the Czech court wanted to know whether asylum-seekers can legally be kept in detention on the grounds of illegal stay.
In its ruling, the Court of Justice says that an asylum seeker has the right to remain in the territory of the member state responsible for examining his application at least until his application has been rejected at first instance. He cannot be considered to be illegally staying in that state during that period and member states may even allow asylum seekers to remain in their territory until a final decision has been delivered on their application. It is for member states to establish the grounds on which asylum seeker may be detained or kept in detention. In the case in question, detention, even after application for asylum was submitted, was justified as the gentleman was detained because his conduct gave rise to the concern that he would abscond, and that his application for asylum seems to have been made with the sole intention of delaying or even jeopardising enforcement of the return decision taken against him. Such circumstances can indeed justify keeping him in detention even after the making of an application for asylum, states the Court of Justice. (FG/transl.fl)