Border controls, asylum and immigration: asylum policy

B, C and X, three third-country nationals, were detained in the Netherlands in the context of procedures for the purposes, respectively, of the examination of an application for international protection, of a transfer to the Member State responsible for such an examination and of a return linked to the illegal nature of the stay in the Netherlands.

The persons concerned challenged before the courts the detention measures adopted in respect of them or the continuation of those measures. Ruling at first or second instance, the referring courts raise the question of the scope of the review of the lawfulness of the measures concerned.

Any detention measure provided for by EU law – namely, by the ‘Reception' Directive (1), the Dublin III Regulation (2) and the ‘Return' Directive (3) respectively – falls, in the Netherlands, within the scope of administrative procedural law, which does not in principle allow the courts to examine of their own motion whether the detention measure in question satisfies a condition of lawfulness which the person concerned has not claimed to have been infringed.

The referring courts are unsure however whether such a situation is compatible with EU law and, in particular, with the fundamental rights to liberty and an effective remedy (4). Consequently, those courts referred questions to the Court of Justice for a preliminary ruling in order to ascertain, in essence, whether EU law requires them to examine of their own motion all the conditions that a detention measure must satisfy in order to be lawful, including those whose infringement has not been raised by the person concerned.

The Court, sitting as the Grand Chamber, holds that, under the ‘Return' Directive (5), the ‘Reception' Directive (6) and the Dublin III Regulation (7), read in conjunction with the Charter (8), 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.

Findings of the Court

In that regard, the Court states, in the first place first, that detention, which constitutes a serious interference with the right to liberty, may be ordered or extended only in compliance with the general and abstract rules laying down the conditions and procedures governing such detention. Those rules, contained in acts of EU law (9), on the one hand, and in the provisions of national law implementing them, on the other, are the rules which determine the conditions governing the lawfulness of detention, including from the point of view of the right to liberty. In accordance with those rules, where it is apparent that the conditions governing the lawfulness of detention have not been or are no longer satisfied, the person concerned must be released immediately.

As regards, in the second place, the right of third-country nationals detained by a Member State to effective judicial protection, the Court notes that, according to the relevant rules of EU law (10), each Member State must provide, where detention has been ordered by an administrative authority, for a ‘speedy' judicial review, either ex officio or at the request of the person concerned, of the lawfulness of that detention. As regards the continuation of a detention measure, EU law (11) requires periodic review or supervision which must occur ‘at reasonable intervals of time' and concern whether the conditions governing the lawfulness of the detention continue to be met. Thus, since EU law requires, without exception, that supervision that the conditions governing the lawfulness of the detention are satisfied must be effected ‘at reasonable intervals of time', the competent authority is required to carry out that supervision of its own motion, even if the person concerned does not request it.

The EU legislature has thus not confined itself to establishing common substantive standards, but has also established common procedural standards, the purpose of which is to ensure that, in each Member State, there is a system which enables the competent judicial authority to release the person concerned, where appropriate after an examination of its own motion, as soon as it is apparent that his or her detention is not, or is no longer, lawful.

In order that such a system of protection effectively ensures compliance with the strict conditions which a detention measure is required to satisfy in order to be lawful, the competent judicial authority must be in a position to rule on all matters of fact and of law relevant to the review of that lawfulness. To that end, it must be able to take into account (i) the facts stated and the evidence adduced by the administrative authority which ordered the initial detention and (ii) any facts, evidence and observations which may be submitted to it by the person concerned. Furthermore, that authority must be able to consider any other element that is relevant for its decision by adopting, on the basis of its national law, the procedural measures which it deems necessary.

On the basis of these elements, that authority must raise, where appropriate, the failure to comply with a condition governing lawfulness arising from EU law, even if that failure has not been raised by the person concerned. That requirement is without prejudice to the obligation to invite each party to express its views on that condition in accordance with the adversarial principle.

(1) Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180, p. 96; ‘the Reception Directive').

(2) Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ 2013 L 180, p. 31, ‘the Dublin III Regulation').

(3) Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98; ‘the Return Directive').

(4) As enshrined in Article 6 and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter') respectively.

(5) Article 15(2) and (3) of the ‘Return' Directive.

(6) Article 9(3) and (5) of the ‘Reception' Directive.

(7) Article 28(4) of the Dublin III Regulation.

(8) Articles 6 and 47 of the Charter.

(9) See Article 15(1), (2), second subparagraph, (4), (5) and (6) of the ‘Return' Directive, Article 8(2) and (3) and Article 9(1), (2) and (4) of the ‘Reception' Directive and Article 28(2), (3) and (4) of the Dublin III Regulation.

(10) See the third subparagraph of Article 15(2) of the ‘Return' Directive and Article 9(3) of the ‘Reception' Directive, which is also applicable, on the basis of Article 28(4) of the Dublin III Regulation, in the context of the transfer procedures governed by that regulation.

(11) Article 15(3) of the ‘Return' Directive and Article 9(5) of the ‘Reception' Directive, which is also applicable, on the basis of Article 28(4) of the Dublin III Regulation, in the context of the transfer procedures governed by that regulation.