M. and others v State Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid)
The CJEU ruled that administrative detention is possible when implementing a forced removal to the Member State that granted refugee status
According to the CJEU summary:
"Three third-country nationals, M, A and T, lodged applications for international protection in the Netherlands although they already had refugee status in other Member States, namely Bulgaria, Spain and Germany respectively. For that reason, the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands) rejected their applications. Having established that they were staying illegally in the Netherlands, the State Secretary ordered them to return immediately to those Member States. Since the persons concerned did not comply, they were detained and then forcibly transferred to the Member States concerned.
M, A and T brought actions before the Rechtbank Den Haag (District Court, The Hague, Netherlands). They claim that without a return decision, within the meaning of the Return Directive, (1) being issued against them beforehand, their detention was unlawful. They therefore seek compensation for the harm suffered as a result of the latter. While the actions brought by M and A were dismissed, T was successful. M and A then lodged appeals before the Raad van State (Council of State, Netherlands), while the State Secretary for Justice and Security also appealed against the judgment upholding T’s action.
It is in that context that the referring court decided to ask the Court whether the Return Directive precludes a Member State from placing in detention a third-country national staying illegally on its territory in order to carry out the forced transfer of that national to another Member State in which he or she has refugee status, where that third-country national has refused to comply with the order given to him to go to that other Member State and it is not possible to adopt a return decision against him. In its judgment, the Court answered that question in the negative.
Findings of the Court
In order to arrive at that conclusion the Court recalled, in the first place, that pursuant to the Return Directive, any illegally staying third-country national must, in principle, be subject to a return decision. The latter must identify the third country to which the person concerned is to be removed, namely his or her country of origin, a transit country or a third country to which he or she decides to return voluntarily and which is prepared to admit that person onto its territory. By way of derogation, where an illegally staying third-country national holds a residence permit in another Member State, he or she must be allowed to return immediately to that Member State rather than issuing a return decision against him or her from the outset. That being the case, where that national refuses to return to the Member State concerned, or where his or her immediate departure is required on grounds of public order or national security, the Member State in which the national concerned is staying illegally must then issue a return decision.
In the second place, the Court noted, however, that it was legally impossible in the present case for the Netherlands authorities to adopt a return decision against the persons concerned, following their refusal to go to the Member States which had granted them refugee status. None of the third countries covered by the Return Directive could constitute a return destination in the present case. In particular, owing to their status as refugees, the persons concerned may not be returned to their country of origin without infringing the principle of non-refoulement. That principle, which is guaranteed by the Charter of Fundamental Rights of the European Union, must be respected by the Member States in the implementation of the Return Directive. Moreover, the Court found that, in such circumstances, none of the standards or procedures laid down in that directive allows the expulsion of those nationals, even though they are staying illegally on the territory of a Member State.
In the third place, the Court observed that the Return Directive is not intended to harmonise in their entirety the rules of the Member States relating to the stay of foreign nationals. In particular, it is not intended to determine the consequences of an illegal stay by a third-country national in respect of whom no return decision to a third country may be issued, in particular where, as in the present case, the application of the principle of non-refoulement renders such a decision impossible. Thus, in such a situation, the decision of a Member State to proceed with the forced transfer of that national to the Member State which has granted him or her refugee status is not governed by the common standards and procedures laid down by the Return Directive. It does not fall within the scope of that directive, but rather within that of the exercise of the sole competence of that Member State in matters of illegal immigration. Consequently, the same is true of the detention of that national, ordered for the purpose of transferring him or her to the Member State concerned. The Court stated, however, that that forced transfer and detention are subject to respect for fundamental rights, in particular those guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the Convention relating to the Status of Refugees."
Detention/ Alternatives to Detention; Return/Removal/Deportation;
European Union, Court of Justice of the European Union [CJEU], M. and others v State Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid), C-673/19, EU:C:2021:127, 24 February 2021. Link redirects to the English summary in the EASO Case Law Database.