Tuesday, 10 June 2014

Judicial control of Detention: A deceptive upheaval?

Marie-Laure Basilien-Gainche

Professor in Law

University Jean Moulin Lyon III
Member of the Institut Universitaire de France

Last Thursday 5 June 2014, the third Chamber of the Court of Justice of the European Union (CJEU) published its decision in the Mahdi case (available in French and Bulgarian, but not yet in English) that offers one more time some clarification about the way the so-called Return Directive must be interpreted: it is the eighth time the Court of Luxembourg has shed some light on some provisions of this Directive (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).

In its famous previous cases, the Court of Luxembourg answered preliminary questions concerning the Directive. Although the Italian Tribunale di Rovigo asked the CJEU to interpret many different provisions of the Return Directive in the Sagor case (CJEU, 6 December 2013, C-430/11), the referring national judges in the other cases asked questions on a specific provision of the Directive: Article 2 in the Arslan case (CJEU, 30 May 2013, C-534/11); Article 8 in the Achughbabian case (CJEU, 6 December 2011, C-319/11); Article 12 in the Filev & Osmani case (CJEU, 19 September 2013, C-297/12); and Article 15 in the Kadzoev case (CJEU, 10 November 2009, C-357/09 PPU), in the El Dridi case (CJEU, 28 April 2011, C-61/11 PPU), and in the G. & R. case (CJEU, 10 September 2013, C-383/13).

The  interpretation of the same provision was again at stake in last week’s Mahdi judgment: the Bulgarian judge (Administrativen sad Sofia-grad) asked numerous detailed questions to the CJEU concerning Article 15 of the Return Directive, particularly its paragraphs 3 and 6, in the light of Articles 6 and 47 of the Charter of Fundamental Rights of the European Union. It should be noted that the French judges that have recently decided to stay their proceedings and to refer to the Court of Justice for preliminary rulings on the Directive, might be inspired by the way such a Bulgarian court addressed its questions. Actually, the requests for a preliminary ruling the Tribunal de grande instance de Bayonne lodged on 15 April 2013 in the Raquel Gianni Da Silva v. Préfet des Pyrénées-Atlantiques case (C-189/13) and the Tribunal administratif de Pau lodged on 6 May 2013 in the Khaled Boudjlida v. Préfet des Pyrénées-Atlantiques case (C-249/13) appear to be rather vague and elusive, so much so we can wonder whether the Court will be able to give some unequivocal answers that would effectively push the French juridical order to be in conformity with the Return Directive provisions.

The Mahdi case concerns a Sudanese national, who was arrested in Bulgaria for not possessing a valid identity document, and against whom a return decision (see Article 8 of the Return Directive) and an entry ban (see Article 11 of the Return Directive) were issued. Being detained in the detention center of Busmansti in order to let the Bulgarian administration organize and proceed to his removal, Bashir Mohamed Ali Mahdi agreed initially to benefit from a voluntary departure (see Article 7 of the Return Directive), before refusing such a solution. Meanwhile, the Sudanese authorities refused to deliver M. Madhi the needed travel documents, so the director of the Busmantsi detention center (direktor na Direktsia «Migratsia» pri Ministerstvo na vatreshnite raboti) proposed that he be released (see Article 15 § 4 of the Return Directive) and subjected to a less coercive measure instead of detention (see Article 15 § 1 of the Return Directive).

Nevertheless, the national administrative hierarchy opposed the proposition of the detention center director. Thus Bashir Mohamed Ali Mahdi remained in the Busmansti center, during all the first period of detention that cannot last more than six months (see Article 15 § 5 of the Return Directive). At the expiration of such a period, the detention center director asked the administrative judge (Administrativen sad Sofia-grad) to extend the detention period (see Article 15 § 6 of the Return Directive), because of the lack of cooperation M. Mahdi showed and the difficulties the administration encountered in obtaining the necessary documentation from the Sudanese ones. As discussed below, these are the only grounds in the Directive for a possible extension of immigration detention of a third-country national (TCN) beyond six months.

The Bulgarian administrative judge did not answer to positively to the administration demand; instead he sent a request for a preliminary ruling to the CJEU as he wondered how paragraphs 3 and 6 of Article 15 of Directive 2008/115/EC had to be understood. The first of these provisions states: “In every case, detention shall be reviewed at reasonable intervals of time either on application by the third-country national concerned or ex officio. In the case of prolonged detention periods, reviews shall be subject to the supervision of a judicial authority”. The second provision states: “Member States may not extend the [six-month] period referred to in paragraph 5 except for a limited period not exceeding a further twelve months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to: (a) a lack of cooperation by the third-country national concerned, or (b) delays in obtaining the necessary documentation from third countries”.

Actually, all the questions the referring judge addressed to the Court concern the detention of the illegally staying third-country national whose removal is pending (see the view of Advocate General Szpunar Maciej). Four points are dealt by the CJEU. The first one concerns the formal and substantial requirements which the decision that extends the period of detention must fulfil: even though Article 15 § 21 of the Return Directive deals with the initial detention decision stating that “Detention shall be ordered in writing with reasons being given in fact and in law”, the Court of Justice asserts that such requirements also have to be satisfied by the later decisions that extend the detention of the illegally staying third-country national.

The Madhi decision also deals with three other points that must be emphasised: 1) the intensity of judicial control of the decision that extends the detention period; 2) the reasons why the TCN is detained and remains in detention; 3) the issuing of a residence authorization when there is no reasonable prospect of removal.

1 - The intensity of judicial control of the decision that extends the detention period

The extension of a detention measure and the nature of the control the judicial authority has to exercise on it have been the subject of previous preliminary rulings of the CJEU. In the Arslan case (CJEU, 30 May 2013, C-534/11), it has been asserted that such an examination must rely on “an assessment on a case-by-case basis of all the relevant circumstances” (§ 63). In the G. & R. case (CJUE, 10 September 2013, C-383/13), the CJEU stated that “where the extension of a detention measure has been decided in an administrative procedure in breach of the right to be heard, the national court responsible for assessing the lawfulness of that extension decision may order the lifting of the detention measure only if it considers, in the light of all of the factual and legal circumstances of each case, that the infringement at issue actually deprived the party relying thereon of the possibility of arguing his defence better, to the extent that the outcome of that administrative procedure could have been different” (§ 45).

These positions of the CJEU didn’t appear to provoke any juridical earthquakes: the interpretations emphasise first that the judicial control must be exercised taking into account all the factual and legal circumstances of the considered case (which sounds quite obvious), and second that such a control can lead to an annulment of the administrative decision that extends the detention for violating the right to be heard only if the respect of such a right would have led to a different result (which seems to restrain the significance of the procedural safeguards).

The decision the CJEU stated in the Madhi case however clearly enhances the scope of the control which the judicial authority has to exercise upon the administrative decision that lengthens the detention of illegally staying TCN against whom removal orders are issued (§ 62). First, the Court doesn’t only assert the judicial authority has to examine the request for an extension of detention with regard to all the factual and legal circumstances of each case; it also insists upon the need for the judicial authority to take into account “all” the circumstances, including even the circumstances which the administrative authority did not transmit or present.

Second, the Court states that the judicial authority can not only refuse the extension of the detention, but also can decide that the illegally staying TCN must instead be the subject of a less coercive measure. This point is particularly important because in Bulgaria (and in France too), the judge doesn’t exercise a full control over the detention extension measure.

However, the Court’s judgment is less constructive as regards to the appreciation of the reasons why an illegally staying TCN can be detained and remain in detention.

2 - The reasons why the TCN is detained and remains in detention

According to the CJEU in the Mahdi case, the fact that the person concerned does not have a valid identity document does not justify the lengthening of detention , and does not constitute by itself a ‘risk of absconding’, which is one of the grounds for detaining that person initially (§ 69). Nonetheless, the Court leaves the national judge free to take into account such an element to decide upon the extension of detention. This is disappointing because a ‘risk of absconding’ is one of the grounds to detain asylum-seekers under the ‘Dublin’ rules and the EU’s reception Directive, so though this might lead to a violation of the international and European rules which recognize and guarantee the right of asylum (compare Article 15 § 1 of the Return Directive to Article 28 of Regulation (EU) n°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 (recast) and Article 8 of 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 (recast)). Moreover, in some countries (such as France) asylum-seekers are treated as irregular migrants (and so are subject to the Returns Directive as such) because of a long delay in recognizing an application for asylum.

It is with impatience and anxiety that we wait for the preliminary ruling the CJEU will give in the Z. Zh. case (C-554/13),  in which the Court will answer some questions sent by the Raad van State (Netherlands) lodged on 28 October 2013 about the way the ‘risk of absconding’ can be or must be defined.

The clarification which the CJEU gave in the Sagor case (CJEU, 6 December 2013, C-430/11) that the risk of absconding must be assessed on the basis of “an individual examination” of the TCN’s case (§ 41) is indeed really insufficient to frame the practices the Member States which have developed to widen the notion excessively: for instance, the French law – Article 39 of the Loi n° 2011-672 relative à l’immigration, à l’intégration et à la nationalité – claims that there is a risk of absconding that justifies detention and the refusal of a period of voluntary departure as in nine different situations, six of which do not seem in conformity with the EU law.

If the risk of absconding can justify the initial detention of an illegally staying TCN, his/her lack of cooperation (as we have seen above) can justify the decision to detain him orher for more than six months. The Madhi case offered the CJEU the opportunity to clarify the meaning of the phrase “a lack of cooperation by the third-country national concerned” (Article 15 § 6 of Directive 2008/115/EC) in this context. The situation of Bashir Mohamed Ali Mahdi is quite clear: he did not hold any valid identity document when he was arrested and he did obtain such a document from his national state authorities afterwards. Can such a situation be considered as a lack of cooperation by Mr. Mahdi?

The answer of the Court could have been more neat and clear. Indeed, the CJEU avoids the problem, asserting that it is not competent to examine the facts of the case, and that only the national judge can answer such a question, as far as it is a question of fact. However, the Court does develop one interesting point which must be emphasised: “a lack of cooperation by the third-country national concerned” can result only from the behavior of the TCN, insofar that the delays and difficulties his/her national state demonstrates in delivering the documentation necessary for his/her removal cannot be blamed upon him or her (§ 85).

3 - The issuing of a residence authorization when there is no reasonable prospect of removal

Do national authorities have to issue of a residence authorization to the illegally staying TCN when there is no reasonable prospect for his/her removal? On this point, the CJEU’s position is even more deceptive. The Court concedes the possibility for the Member States to refuse a legal residence to unremovable TCNs, therefore maintaining them in a precarious irregular legal status (we can think here of the French law that makes a quite cryptic distinction between the “droit au séjour” (right to reside) and the “maintien sur le territoire” (right to stay on national territory)).

Admittedly, the return Directive deals with the removal measures issued against illegally staying TCNs, not with the residence card offered to such TCNs if they cannot be removed. But somehow, the CJEU does not confirm the position the Commission has asserted since the negotiations of the Return Directive began: that EU law offers a simple alternative between proceeding to the removal of the irregular migrants or giving them a residence authorization. The question must be asked how much the CJEU’s position can affect the effectiveness of the return Directive, since it means that large numbers of persons will remain on national territories who cannot be removed, but who do not have a fully-fledged right to reside. Similarly the Court’s insistence that national courts have extensive control over detention decisions is undercut by its willingness to give them a great deal of leeway to decide whether someone ought to be initially detained, and whether that detention can be renewed.

Barnard & Peers: chapter 26

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