C-673/19: Judgment on the detention of third country nationals pending return to Member State that granted international protection

Wednesday, February 24, 2021

On 24 February 2021, the Court of Justice of the EU ruled in case C-673/19 on the detention of third-country nationals pending their return to the Member State that granted them international protection.
The case concerned three third-country nationals that applied for international protection in the Netherlands but their applications were rejected as inadmissible as they had previously been granted refugee status in another Member State. In the same inadmissibility decisions, they were also ordered to immediately return to the countries that had granted them status but they did not comply. All three were then placed in detention and subsequently returned to the countries that had granted them refugee status. Following challenges against their detention and subsequent appeals, the Council of State referred a question to the CJEU on the possibility of detention for the forced return of third-country nationals to the Member States that granted them refugee status.
The Court started its assessment by referring to the aim of the Return Directive to establish effective and rights-compliant return procedures and the definition of illegal stay under Article 3 (2). The latter concerns third-country nationals who are present in a Member State without fulfilling the conditions for that stay, including where they have a valid residence permit in another Member State on account of their refugee status. As far as their stay has not been regularised, the third-country national falls under the Return Directive and the procedures of that Directive should apply.
According to Article 6(2), third-country national with a right of residence in another Member State should be allowed to return to that Member State rather than be issued a return decision from the beginning, unless security reasons apply. This derogation does not mean that illegally staying third-country nationals can be exempted from the scope of the Directive when they refuse to return to the Member State of residence; they will simply be the subject of a return decision in accordance with Article 6(2) to any of the countries listed in Article 3(3).
However, the applicants in the present case could not be returned to any of the countries found in Article 3(3) Return Directive due to, inter alia, non-refoulement considerations. The Netherlands was therefore legally unable to fulfil the obligation to issue a return decision under Article 6(2) and there were no procedures in the Return Directive for such a situation. As the Return Directive does not intend to harmonise in its entirety the national legislation of the Member States on the stay of third-country nationals, the Court considered that the decision of the Netherlands to detain for the purposes of forced return fell under its national competence on migration and is not governed by the Directive. Since such a decision cannot be issued in the circumstances of this case and, in any case, fundamental rights were observed, the Court concluded that the Return Directive did not prevent the detention of the applicants in this case.
With thanks to Stavros Papageorgopoulos, Legal Officer at ECRE, for drafting this summary. You can read the full EDAL summary here.

Photo: Transparency International, March 2013, Flickr (CC)

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

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