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
No comments:
Post a Comment