Brussels, 15/02/2016 (Agence Europe) - Member states are obliged to implement a decision by their authorities to return a third-country national even if that person has submitted a fresh asylum application, the Court of Justice of the EU made clear on Monday 15 February, going against the case-law of the Netherlands Raad van State (Council of State).
The Court of Justice delivered its ruling (case C601/15 PPU) under the urgent preliminary ruling procedure. It was responding to the Dutch Council of State which had sought advice on the compatibility between Community law on the standards of reception of persons seeking international protection and the EU Charter of Fundamental Rights in combination with the recent European Court of Human Rights (ECHR) ruling. This latter decision established that detention of an asylum seeker is illegal unless imposed for the purpose of deportation.
The present case concerns a third-country national, found guilty on several occasions by the Netherlands of theft, all of whose asylum requests had been rejected and who was ordered to leave the territory. In 2015, he was again sentenced to a further term of imprisonment and was subsequently held in detention as an asylum seeker as he had again made an application for asylum. The national court had then to determine the validity of Directive 2013/33 (reception standards for persons seeking international protection), which permits an asylum seeker to be placed in detention when protection of national security or public order requires it. The asylum seeker at the centre of this case highlighted ECHR case-law.
In its ruling, the Court of Justice states that the detention measure, provided for in the directive in question, genuinely meets an objective of general interest recognised by the EU, that is to say, the protection of national security and public order, while pointing out that the duration of the detention should be as short as possible. To address the question put, however, the Court then referred to another directive, that on common standards and procedures for returning illegally staying third-country nationals (2008/115/EC).
The Court emphasised that EU law that requires that a procedure opened under that directive which has given rise to a return decision can be resumed, at the stage at which it was interrupted, as soon as the application for international protection which interrupted it has been rejected at first instance. The member states must not jeopardise the attainment of the objective pursued by the return directive, namely the establishment of an effective policy of removal and repatriation of illegally staying third-country nationals.
The judges ultimately merely highlighted Community law. In thus linking the two directives and in noting that ECHR case-law allows a person against whom a deportation procedure has been opened to be detained, they invalidated current case-law in the Netherlands where the Council of State had established that the introduction of an asylum application by a person who is subject to a return procedure has the effect of rendering an earlier return decision inoperative. (Original version in French by Jan Kordys)