Miguel Alconero Bravo, Predoctoral Research
Fellow (Formación de Personal Investigador – FPI) at the University of
Valladolid*
Photo credit: berthgmn via wikimedia
commons
Introduction
Predicating the detention of a migrant on
circumstances entirely beyond his or her control seems prima facie
unjust. Indeed, even a cursory reading of the provisions of EU law empowering Member
States to extend the detention of a foreign national due to delays in obtaining
the necessary documentation from third countries unmistakably exposes the inherent
disproportionality of such a measure.
Ordering detention v. Extending detention
It must first be emphasised that both Article
15(6) of the Return Directive and Article 32(3) of the Commission proposal to overhaul EU return
procedures enable Member States solely to extend a period of deprivation
of liberty that has already been lawfully ordered.
Accordingly,
where the conditions required under EU law for the detention of a third-country
national are not satisfied in a given factual scenario, it is legally
immaterial whether any of the grounds permitting a State to prolong that
measure are present. If a person could not lawfully have been deprived of
liberty from the outset, there is, fundamentally, no valid detention susceptible
of being extended.
In this regard,
Article 15(5) of the Return Directive states that “detention shall be
maintained for as long a period as the conditions laid down in paragraph 1 are
fulfilled and it is necessary to ensure successful removal”, whereas Article
32(1) of the proposal for a Return Regulation provides that “detention shall be
maintained for as short a period as possible and for as long as the conditions laid
down in Article 29 are fulfilled […]”.
Reference must
therefore be made to Article 15(1) of the Return Directive, which adopts a numerus
apertus approach. This provision refers in particular to two
situations that may lead to the detention of a foreign national pending
removal: the existence of a risk of absconding, and the possibility of
identifying conduct through which the migrant seeks to avoid or hamper the
preparation of return or the removal process.
Similarly, Article
29(3) of the proposed Regulation sets out, in exhaustive terms, the only
situations in which the requesting State may order the detention of an irregularly
staying third-country national: (a) where there is a risk of absconding
determined in accordance with Article 30; (b) where the third-country national
avoids or hampers the preparation of the return or the removal process; (c) where
the third-country national poses security risks in accordance with Article 16;
(d) in order to determine or verify his or her identity or nationality; (e) in
the event of non-compliance with the measures ordered pursuant to Article 31.
Thus, the vast
majority of the grounds for detention laid down in the Return Directive and in
the proposed Regulation relate to scenarios in which the third-country national
concerned has sought to frustrate the enforcement of return or the removal
process. In essence, deprivation of liberty under both instruments is generally
linked to some form of non-cooperation by the person concerned.
In this
context, it must be stressed that construing the foreign national's lack of
cooperation as a ground for extending detention – as Article 15(6)(a) of the
Return Directive and Article 32(3) of the proposed Regulation do – makes it easier
to postulate that the ground originally justifying detention still subsists. In
other words, such a construction allows the authorities to establish the
presence of almost any of the grounds set out in Article 15(1) of the return
Directive and in Article 29(3) of the proposed Regulation for the purpose of
ordering the detention of a migrant.
As a matter of
fact, when a State invokes the “lack of cooperation by the third-country
national concerned” in order to prolong detention, it is essentially relying on
a concept whose indeterminacy allows national authorities to subsume within it many
of the very grounds on which they could initially have relied to deprive that person
of liberty.
In sum, extending
the detention of a foreign national as a consequence of his or her lack of
cooperation will, in most cases, make it possible to ascertain that the grounds
for detention set out in EU law continue to be met.
Nonetheless,
an exception must be made in respect of Articles 29(3)(c) and 29(3)(d) of the
proposed Regulation –namely, where the person concerned is a third-country
national deemed to pose a security risk, and where detention is ordered for the
purpose of determining or verifying the foreign national’s identity or
nationality.
In that
respect, it should be noted that detention ordered on the grounds that a
migrant poses a risk to public order, public security or national security
bears, strictly speaking, no relation to the degree of cooperation he or she
may have been willing to display during the return procedure. Irrespective of
the individual’s willingness to cooperate, once a foreign national has been
deprived of liberty on the basis that he or she is regarded as a threat to a
State’s public order, public security or national security, detention will
persist for as long as that classification remains in force.
That being so,
authorities cannot invoke a migrant’s lack of cooperation to extend detention where
the initial deprivation of liberty was based on security grounds or on the need
to verify identity, as those circumstances do not, as such, relate to the
individual’s conduct during the return procedure (unless a genuine and
subsequent lack of cooperation actually materialises). Nevertheless, it is
equally true that, in our view, Brussels errs in treating said situations as
grounds for detention in the first place.
Against this
backdrop, the pivotal question is as follows: under which of the grounds set
out in either Article 15(1) of the Return Directive or Article 29(3) of the
proposed Regulation could a Member State’s intention to prolong the detention
of a third-country national be classified when that intention is based, purely
and simply, on the likelihood that the procedure will take longer owing to
delays in obtaining the required documentation from third countries?
As far as the Return
Directive is concerned, the answer may lie in the numerus apertus
structure of Article 15(1). Article 29(3) of the proposed Regulation, however, does
not, under any circumstances, permit a third-country national to be deprived of
liberty solely on the basis of delays in obtaining documents from third
countries.
The conclusion
follows inexorably. The wording of Article 32(3) of the proposed Regulation allowing
deprivation of liberty to be prolonged “where the return procedure is likely to
last longer owing to […] delays in obtaining the necessary documentation from
third countries” ought to be removed. If EU law does not recognise the
possibility of detaining a foreign national on that ground, it is a fortiori
manifestly contrary to the principle of proportionality that such delays should
then be relied upon to justify prolonging the duration of a custodial measure.
A structural contradiction
It must be acknowledged that both Article 32(3)
of the proposed Return Regulation and Article 15(6)(b) of the Return Directive
pursue an entirely legitimate aim: namely, to prevent, through the use of all
available means, a situation in which enforcement of the return decision
becomes impossible as a result of a temporary delay in receiving the necessary
documentation from the requested State.
That said, it is crucial to recall that, in order
for the detention of a third-country national to be prolonged, there must first
exist a custodial measure resting on a valid legal basis. The analysis must
therefore begin by determining whether in the factual circumstances of the case
the substantive conditions laid down in EU law for depriving a migrant of liberty
are actually satisfied.
Against this background, neither Article 15(1) of
the Return Directive nor Article 29(3) of the proposed Regulation treats a mere
delay in the completion of the administrative or diplomatic formalities
necessary to obtain the required documentation from third countries as a
circumstance capable of justifying an initial deprivation of liberty.
This gives rise to a stark legal contradiction: if
EU law precludes the initial detention of a third-country national on the basis
of administrative delays in obtaining the necessary documentation from third
countries, why does Brussels permit its Member States to extend detention on
that very ground? Although such delays cannot justify the initial deprivation
of liberty, they may nonetheless serve to prolong the detention of a migrant.
The result is a structural paradox whereby a
custodial measure that should come to an end from the moment the substantive
conditions underpinning detention are no longer met is nevertheless lawfully
prolonged by the requesting State under the provisions governing extension.
That tension becomes all the more striking when
viewed in the light of other instruments of EU migration law. In particular,
Article 11(1) of Directive 2024/1346 provides that “delays in administrative
procedures that cannot be attributed to the applicant shall not justify a
continuation of detention”.
For all these reasons, if the EU wished to
preserve this ground for prolonging detention in the proposed Regulation, its
express incorporation into Article 29(3) as a ground, not just for extending, but also
for ordering detention would be necessary.
As regards Directive 2008/115, the only interpretative
solution would be to conclude that, by merely identifying the risk of
absconding and the possibility that the individual may avoid or hamper the
preparation of return as the two grounds that, in particular, entitle a
State to deprive a migrant of liberty, that instrument implicitly leaves room
for the authorities to rely on other situations as independent grounds for
detention. One such additional scenario would be, precisely, delays in obtaining
the necessary documentation from third countries.
However, both of those alternatives must be categorically
rejected. Otherwise, the ultima ratio nature traditionally associated
with the detention of an irregularly staying third-country national would be severely
compromised.
In any event, the release of the individual concerned
does not prevent the authorities from resorting to less restrictive measures designed
to secure the enforcement of return pending receipt of the necessary
documentation.
In this regard, Article 31 of the proposed
Regulation explicitly provides for various alternatives to detention, which
must be “proportionate to the level of the risk of absconding assessed in
accordance with Article 30”. Furthermore, Article 23 of said proposal provides
for a series of options which, by restricting the individual’s geographical
mobility, are capable of ensuring his or her availability during the removal process.
Mahdi: When can detention be extended?
The Court of Justice of the European Union (CJEU)
clarified in Mahdi the scope of the
assessment that national courts must undertake before authorising any extension
of a detention period on the basis of Article 15(6) of the Return Directive
In order to rule on the questions referred by the
Administrativen sad Sofia-grad, the CJEU began by identifying the defining
features of Article 15 of the Return Directive. It emphasised, in particular, that
this provision is both “unconditional” and “sufficiently precise”, qualities
which explain why its implementation by the Member States requires “no other
specific elements”.
The Court then turned to the provisions whose
interpretation had been requested by the referring court, namely Articles 15(3)
and 15(6) of the Return Directive.
Concerning Article 15(3), the Court underlined
the clarity with which its wording indicates that any detention measure prolonged
over time must be subject to the “supervision” of a judicial authority. Yet the
CJEU also acknowledged that the provision does not specify the precise nature
of that examination, thereby making it necessary to “recall the rules deriving
from Article 15 […]” in order to complete the analysis required by the question
raised by the Bulgarian court.
It was at that stage that the Court brought
Article 15(6) of Directive 2008/115 into the discussion.
Significantly, however, the CJEU did not confine
itself to identifying the consequences flowing from the substantive conditions set
out in that provision. Instead, it examined Article 15(6) in the light of
Article 15(4) of the same Directive.
In so doing, the Court of Justice of the European
Union introduced two decisive elements into the judicial review of the deprivation
of liberty of an irregularly staying third-country national.
First, it held that, “at the time of the national
court’s review of the lawfulness of
detention”, there must be “a real prospect that
the removal can be carried out successfully”, having regard to the time limits
laid down in Articles 15(5) and 15(6) of Directive 2008/115.
Secondly, the Court established that the
authority determining whether the individual’s detention should be extended or
whether he or she should be released must re-examine the substantive conditions
laid down in Article 15(1) of the Return Directive. Crucially, this entails
verifying that the grounds “which have formed the basis for the initial
decision to detain the third-country national concerned” continue to subsist.
This point is of central importance to the present
discussion, since Article 15(1) of the Return Directive makes no reference
whatsoever to the possibility of detaining a foreign national solely on account
of delays by third countries in issuing the necessary documentation. It follows
that reliance on such a ground does not relieve the competent authorities of
the burden of demonstrating, first, that there remains a “reasonable prospect of removal” and, secondly, that the substantive grounds which
justified the initial deprivation of liberty continue to subsist.
The disappearance of either the reasonable
prospect of removal or the substantive grounds that initially justified the detention
of the third-country national necessarily renders that deprivation of liberty
unlawful, as Article 15(4) of the Return Directive makes clear. That conclusion
is not altered by the mere fact that the authorities continue to await the
necessary documentation from other States.
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