OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 30 April 2020 (1)
Case C‑36/20 PPU
Criminal proceedings
against
VL,
in the presence of:
Ministerio Fiscal
(Request for a preliminary ruling from the Juzgado de Instrucción nº 3 de San Bartolomé de Tirajana (Court of Preliminary Investigation No 3 of San Bartolomé de Tirajana, Spain))
(Reference for a preliminary ruling — Border controls, asylum and immigration — Asylum policy — Procedure for granting international protection — Directive 2013/32/EU — Article 6 — Access to the procedure — Other authorities likely to receive applications for international protection but not competent for their registration — Meaning of ‘other authorities’ — Standards for the reception of applicants for international protection — Directive 2013/33/EU — Article 8 — Detention of the applicant — Principle of non-refoulement)
I. Introduction
1. ‘Humanitarianism is clearly essential to the protection of refugee rights. It reflects a concern for others and for our shared existence … But humanitarianism is not enough. It reflects only the positive aspect of the response to inhumanity, and the negative aspect appears all too quickly behind the masks, when civility gives way to necessity. Rights are the positive aspect of obligations. These commitments stand on solid foundations. It is always possible to abolish them, but it requires a collective decision’. (2)
2. It is in that spirit that I will consider this request for a preliminary ruling.
3. The questions posed by the Juzgado de Instrucción nº 3 de San Bartolomé de Tirajana (Court of Preliminary Investigation No 3 of San Bartolomé de Tirajana, Spain) relate essentially to the interpretation of Article 6(1) and Article 26 of Directive 2013/32/EU, (3) and that of Article 17(1) and (2) and Article 8(3) of Directive 2013/33/EU. (4)
4. This matter arises against the background of a refoulement decision taken, inter alia, against a Malian national who made an application for international protection to the referring court after the boat in which he was travelling was intercepted by the authorities of a Member State off the coast of that Member State.
5. This reference for a preliminary ruling will require the Court to address an issue which has not previously been considered: whether a judicial authority, such as a court of preliminary investigation, which, under national law, is competent to order the detention of third-country nationals in a removal centre, can be regarded as one of the ‘other authorities’ likely to receive applications for international protection referred to in Article 6(1) of Directive 2013/32. If that question is answered in the affirmative, the Court will then need to determine whether that authority is required to provide a person applying for international protection with the relevant information as to how to lodge the application. Finally, the Court will have occasion to rule on the point in time at which the persons concerned acquire the status of applicants for international protection, and on the consequences which flow from the acquisition of that status as regards the circumstances in which they can be detained.
II. Legal background
A. International law
6. The Convention relating to the Status of Refugees, which was signed in Geneva on 28 July 1951, (5) and to which all the Member States are contracting parties (6) (‘the Geneva Convention’) entered into force on 22 April 1954, and was supplemented and amended by the Protocol relating to the Status of Refugees, concluded in New York on 31 January 1967, which entered into force on 4 October 1967 (‘the Protocol’).
7. The preamble to the Geneva Convention notes that the United Nations High Commissioner for Refugees (UNHCR) is responsible for supervising the application of international conventions guaranteeing the protection of refugees. Article 35 thereof provides that the States ‘commit to cooperating with the … [High Commissioner for Refugees (HCR)] in the exercise of its duties and in particular to facilitating its duty of supervising the application of that convention’.
8. Under the definition in Article 1A(2) of the Geneva Convention, the term ‘refugee’ applies to any person who, ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it’.
9. Article 3 of the convention provides that ‘the Contracting States shall apply the provisions of this convention to refugees without discrimination as to race, religion or country of origin’.
10. Under Article 33(1), ‘no Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’.
B. European Union law
1. The Charter of Fundamental Rights of the European Union
11. Article 18 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which is headed ‘Right to asylum’, states:
‘The right to asylum shall be guaranteed with due respect for the rules of [the Geneva Convention] and [the Protocol] and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union (hereinafter referred to as “the Treaties”)’.
12. Under the heading ‘Protection in the event of removal, expulsion or extradition’, Article 19 of the Charter provides:
‘1. Collective expulsions are prohibited.
2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.’
2. Directive 2013/32
13. Article 4 of Directive 2013/32, which is headed ‘Responsible authorities’, provides in paragraph 1:
‘Member States shall designate for all procedures a determining authority which will be responsible for an appropriate examination of applications in accordance with this Directive. Member States shall ensure that such authority is provided with appropriate means, including sufficient competent personnel, to carry out its tasks in accordance with this Directive.’
14. Article 6 of that directive, which is headed ‘Access to the procedure’, states:
‘1. When a person makes an application for international protection to an authority competent under national law for registering such applications, the registration shall take place no later than three working days after the application is made.
If the application for international protection is made to other authorities which are likely to receive such applications, but not competent for the registration under national law, Member States shall ensure that the registration shall take place no later than six working days after the application is made.
Member States shall ensure that those other authorities which are likely to receive applications for international protection such as the police, border guards, immigration authorities and personnel of detention facilities have the relevant information and that their personnel receive the necessary level of training which is appropriate to their tasks and responsibilities and instructions to inform applicants as to where and how applications for international protection may be lodged.
2. Member States shall ensure that a person who has made an application for international protection has an effective opportunity to lodge it as soon as possible. Where the applicant does not lodge his or her application, Member States may apply Article 28 accordingly.
3. Without prejudice to paragraph 2, Member States may require that applications for international protection be lodged in person and/or at a designated place.
4. Notwithstanding paragraph 3, an application for international protection shall be deemed to have been lodged once a form submitted by the applicant or, where provided for in national law, an official report, has reached the competent authorities of the Member State concerned.
5. Where simultaneous applications for international protection by a large number of third-country nationals or stateless persons make it very difficult in practice to respect the time limit laid down in paragraph 1, Member States may provide for that time limit to be extended to 10 working days.’
15. Article 8 of that directive, which is headed ‘Information and counselling in detention facilities and at border crossing points’, provides:
‘1. Where there are indications that third-country nationals or stateless persons held in detention facilities or present at border crossing points, including transit zones, at external borders, may wish to make an application for international protection, Member States shall provide them with information on the possibility to do so. In those detention facilities and crossing points, Member States shall make arrangements for interpretation to the extent necessary to facilitate access to the asylum procedure.
2. Member States shall ensure that organisations and persons providing advice and counselling to applicants have effective access to applicants present at border crossing points, including transit zones, at external borders. Member States may provide for rules covering the presence of such organisations and persons in those crossing points and in particular that access is subject to an agreement with the competent authorities of the Member States. Limits on such access may be imposed only where, by virtue of national law, they are objectively necessary for the security, public order or administrative management of the crossing points concerned, provided that access is not thereby severely restricted or rendered impossible.’
16. Article 26 of that directive, entitled ‘Detention’, provides:
‘1. Member States shall not hold a person in detention for the sole reason that he or she is an applicant. The grounds for and conditions of detention and the guarantees available to detained applicants shall be in accordance with Directive [2013/33].
2. Where an applicant is held in detention, Member States shall ensure that there is a possibility of speedy judicial review in accordance with [Directive 2013/33].’
3. Directive 2013/33
17. Article 8 of Directive 2013/33, which is headed ‘Detention’, provides:
‘1. Member States shall not hold a person in detention for the sole reason that he or she is an applicant in accordance with [Directive 2013/32].
2. When it proves necessary and on the basis of an individual assessment of each case, Member States may detain an applicant, if other less coercive alternative measures cannot be applied effectively.
3. An applicant may be detained only:
(a) in order to determine or verify his or her identity or nationality;
(b) in order to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant;
(c) in order to decide, in the context of a procedure, on the applicant’s right to enter the territory;
(d) when he or she is detained subject to a return procedure under 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, [(7)] in order to prepare the return and/or carry out the removal process, and the Member State concerned can substantiate on the basis of objective criteria, including that he or she already had the opportunity to access the asylum procedure, that there are reasonable grounds to believe that he or she is making the application for international protection merely in order to delay or frustrate the enforcement of the return decision;
(e) when protection of national security or public order so requires;
(f) in accordance with Article 28 of 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. [(8)]
The grounds for detention shall be laid down in national law.
4. Member States shall ensure that the rules concerning alternatives to detention, such as regular reporting to the authorities, the deposit of a financial guarantee, or an obligation to stay at an assigned place, are laid down in national law.’
18. Article 9 of Directive 2013/33, which is headed ‘Guarantees for detained applicants’, states in the first subparagraph of paragraph 1:
‘An applicant shall be detained only for as short a period as possible and shall be kept in detention only for as long as the grounds set out in Article 8(3) are applicable.’
19. Article 17 of the directive, which is headed ‘General rules on material reception conditions and health care’, provides in paragraph 1:
‘Member States shall ensure that material reception conditions are available to applicants when they make their application for international protection.’
C. Spanish law
20. The Spanish legal framework is made up of Article 58(3), (4) and (6), Articles 61 and 62, and Article 64(5) of the Ley Orgánica 4/2000 sobre derechos y libertades de los extranjeros en España y su integración social (Basic Law 4/2000 on the rights and freedoms of foreign nationals in Spain and their social integration), of 11 January 2000, (9) as amended by the Ley Orgánica 2/2009 de reforma de la Ley Orgánica 4/2000 (Basic Law 2/2009 amending Basic Law 4/2000), (10) of 11 December 2009 (‘Basic Law 4/2000’).
21. Article 58(3) of Basic Law 4/2000 makes provision for a simplified procedure for the removal of foreign nationals attempting to enter Spain illegally. Article 58(4) of that law states that the persons referred to in Article 58(3) may not be removed for as long as any application for international protection has not been declared inadmissible, while Article 58(6) provides that where the foreign national cannot be removed within 72 hours, an order for his or her detention is to be sought from the judicial authorities.
22. Article 61 of Basic Law 4/2000 makes provision for interim measures in relation to removal procedures. Article 62 of that law concerns detention while Article 64(5) provides for removal decisions to be suspended for so long as an application for international protection has not been declared inadmissible.
23. Articles 2 and 3 of the Ley 12/2009, reguladora del derecho de asilo y de la protección subsidiaria (Law 12/2009 of 30 October 2009 regulating the right to asylum and subsidiary protection), (11) of 30 October 2009, as amended by the Ley 2/2014, de la Acción y del Servicio Exterior del Estado (Law 2/2014 on external action and the external service of the State), (12) of 25 March 2014 (‘the Law on asylum’) respectively define the right of asylum and the status of refugee. Article 5 of that law provides, amongst other things, that a person who has been granted subsidiary protection may not be removed, while Article 30 provides for applicants for international protection who require social and reception services to have access to those services.
III. The facts of the main proceedings and the questions referred for a preliminary ruling
24. On 12 December 2019, a boat carrying 45 sub-Saharan African nationals, including VL, the defendant in the main proceedings, was intercepted by the Salvamento Marítimo (the Spanish marine rescue authority) off the Spanish coast, about one nautical mile south of the island of Gran Canaria (Spain). After receiving first aid, the nationals concerned were handed over to the Brigada Local de Extranjería y Fronteras (Local Foreign Nationals and Borders Brigade, Spain) of the Comisaría de Policía Nacional de Maspalomas (National Police Commissariat of Maspalomas, Spain).
25. On 13 December 2019, they were placed under the control of the Jefatura Superior de Policía de Canarias (Upper Prefecture of Police of the Canary Islands, Spain), as can be seen from the record of their being detained and informed of their rights. On the same day, the Subdelegación del Gobierno en Las Palmas (Governmental Subdelegation of Las Palmas, Spain) adopted a refoulement decision in respect of the nationals concerned, under Article 58(3)(b) of Basic Law 4/2000, for having attempted to enter Spain illegally. As that decision could not be implemented within the 72-hour period contemplated by Article 58(6) of that law, an application for detention in a removal centre was made to the Juzgado de Instrucción nº 3 de San Bartolomé de Tirajana (Court of Preliminary Investigation No 3 of San Bartolomé de Tirajana).
26. In the course of a preliminary investigation opened before that court, it gave a decision of 14 December 2019 in which it granted VL the right to make a statement, having been informed of his rights and with the assistance of a lawyer and a Bambara interpreter (13) (‘the first decision of 14 December 2019’). That statement was made in the presence of the judge, the court registrar, an official from the court registry, VL’s lawyer and the interpreter. A record was drawn up the same day, stating that after his rights had been explained to him, VL indicated, in his statement, that it was his intention to apply for international protection. He indicated that he was afraid of being persecuted for reasons of race or membership of a social group on account of the war in his country of origin, Mali, and of being killed if he returned.
27. Since it was not the authority competent under national law for registering the application for international protection, the Juzgado de Instrucción nº 3 de San Bartolomé de Tirajana (Court of Preliminary Investigation No 3 of San Bartolomé de Tirajana) gave another decision of the same date (‘the second decision of 14 December 2019’), recording that the statement in which VL had indicated his intention to seek international protection had been communicated, with a view to compliance with Article 6(1) of Directive 2013/32 of Directive 2013/32, to the provincial brigade for foreign nationals and borders, and brought to the attention of the HCR. By that decision, the court asked the Governmental Subdelegation of the Canaries, the provincial brigade for foreign nationals and borders, and the Ministerio de Trabajo, Migraciones y Seguridad Social (Ministry for Work, Immigration and Social Security, Spain), to place VL in a humanitarian reception centre. A list containing the names of 25 other sub-Saharan African nationals who had sought international protection in the same way was sent to those authorities.
28. Of those 26 individuals, 12 were placed in humanitarian reception centres and, due to a lack of capacity, 14, including VL, were detained in a removal centre by the second decision of 14 December 2019. The referring court states that an official of the provincial brigade for foreign nationals and borders had informed VL, before he was transferred to the removal centre, that an appointment had been made for him to be interviewed in relation to his application for international protection.
29. The Ministerio fiscal (public prosecution service, Spain) then brought an appeal against the second decision of 14 December 2019 before the referring court, maintaining that the investigating magistrate had no power either to receive applications for asylum or to seek to resolve the issue of emergency accommodation for applicants for international protection.
30. VL’s lawyer also brought an appeal seeking amendment of that decision, contending that the detention of VL was contrary to Directives 2013/32 and 2013/33.
IV. The questions referred
31. It was against that background that, by decision of 20 January 2020, received at the Court Registry on 25 January 2020, the Juzgado de Instrucción nº 3 de San Bartolomé de Tirajana (Court of Preliminary Investigation No 3 of San Bartolomé de Tirajana) referred the following questions for a preliminary ruling:
‘(1) The second subparagraph of Article 6(1) of [Directive 2013/32] provides for the situation where applications for international protection are made before other authorities that are not competent to register them under national law, in which event Member States are to ensure that the registration takes place no later than six working days after the application is made.
Is the foregoing to be interpreted as meaning that examining magistrates who are competent to adjudicate on the detention or otherwise of foreign nationals under Spanish national law are to be regarded as one of those ‘other authorities’, which are not competent to register an application for international protection but before which applicants may nonetheless indicate their intention to make such an application?
(2) If an examining magistrate is deemed to be one of those authorities, is Article 6(1) of [Directive 2013/32] to be interpreted as meaning that he or she must provide applicants with information on where and how to make an application for international protection, and, if such an application is made, transfer it to the body competent under national law to register and process it, as well as to the competent administrative body, so that the applicant can be granted the reception measures provided for in Article 17 of [Directive 2013/33]?
(3) Are Article 26 of [Directive 2013/32] and Article 8 of [Directive 2013/33] to be interpreted as meaning that a third-country national may not be held in detention unless the conditions laid down in Article 8(3) of [Directive 2013/33] are met, on the ground that the applicant is protected by the principle of non-refoulement from the point at which he or she indicates his or her intention [to apply for international protection] before the examining magistrate?’
V. The urgent procedure
32. The referring court asked for this reference for a preliminary ruling to be dealt with under the urgent procedure provided for in Article 107 of the Rules of Procedure of the Court. The reason given for that request was that VL was currently detained in a removal centre and thus deprived of his liberty. The referring court also stated that VL was subject to a removal decision which had been made on 13 December 2019 and might be enforced at any time.
33. On 6 February 2020, the Fourth Chamber of the Court decided, on the proposal of the Judge-Rapporteur and after hearing the Advocate General, to grant the referring court’s request for the reference for a preliminary ruling be dealt with under the urgent procedure. The parties to the main proceedings submitted written observations, as did the Spanish Government and the European Commission.
34. On 17 March 2020, the President of the Fourth Chamber of the Court decided, against the background of the spread of the SARS-CoV-2 virus, to vacate the hearing of this matter which had been listed for 23 March 2020. By way of measures of organisation of procedure and as an exceptional step, the Fourth Chamber decided to replace that hearing with questions to be answered in writing. The parties at issue, as well as the Spanish Government and the Commission, answered the questions posed by the Court. (14)
VI. Analysis
A. Admissibility
35. In its written observations, the Spanish Government disputes the admissibility of the reference for a preliminary ruling in this matter. It submits that the referring court is competent only to authorise or not to authorise the detention of a third-country national with a view to enforcement of the refoulement decision. Accordingly, it maintains that the referring court’s questions bear no relation to the subject matter of the proceedings.
36. It is well established that requests for preliminary rulings which relate to EU law enjoy a presumption of relevance. The Court may refuse to give a ruling on a question referred by a national court only where it is quite obvious that the interpretation of a rule of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (15)
37. To return to the present case, I consider that the three questions, as formulated, clearly relate to the interpretation of Article 6(1) and Article 26 of Directive 2013/32 and of Article 17(1) and (2) and Article 8(3) of Directive 2013/33. In those circumstances, therefore, I see nothing to prevent the Court giving a ruling in this matter and interpreting the provisions of Directives 2013/32 and 2013/33. In any event, it is not for the Court to decide on the allocation of internal jurisdiction. Accordingly, the presumption of relevance enjoyed by the request for a preliminary ruling in this matter is not rebutted by the objections of the Spanish Government. I therefore consider that the request for a preliminary ruling in this matter is admissible.
B. Substance
1. Introductory remarks on the interpretation of Directives 2013/32 and 2013/33
38. It seems to me that it may be helpful, before turning to the examination of the questions referred, to summarise the background to Directives 2013/32 and 2013/33.
39. I would point out, first of all, that those directives were adopted on the basis of Article 78(2)(d) and (f) TFEU. As Article 78(1) TFEU provides, the common policy on asylum, subsidiary protection and temporary protection, which aims to offer ‘appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement’, ‘must be in accordance with the [Geneva Convention] and the [Protocol], and other relevant treaties’.
40. Secondly, I would refer to Article 18 of the Charter, which provides that the ‘right to asylum shall be guaranteed with due respect for the rules of the [Geneva Convention] and the [Protocol] and in accordance with the [TEU] and the [TFEU]’. (16)
41. In that regard, it is settled case-law that, although the European Union is not a contracting party to the Geneva Convention, Article 78(1) TFEU and Article 18 of the Charter nonetheless require it to observe the rules of that convention. (17) It is thus clear that Directives 2013/32 and 2013/33 must, by virtue of those provisions of primary law, observe those rules. (18)
42. Furthermore, it is apparent from recital 3 of both directives that, following the conclusions reached at the Tampere European Council, (19) the EU legislature sought to establish a Common European Asylum System based on the ‘full and inclusive application of the Geneva Convention’, thus affirming the principle of non-refoulement.
43. Some academic commentators consider this to be a principle of customary international law, (20) and to have the status of jus cogens. (21) The principle is laid down, inter alia, in Article 33 of the Geneva Convention, (22) and is one of the principles which underlie the Common European Asylum System, (23) and make it possible to guarantee effective access to common procedures for the grant and withdrawal of uniform asylum or subsidiary protection status. (24)
44. Recital 15 of Directive 2013/32 and recital 10 of Directive 2013/33 state that, with respect to the treatment of persons falling within the scope of those directives, Member States are bound by obligations under instruments of international law to which they are party. (25)
45. Furthermore, recital 60 of Directive 2013/32 and recital 35 of Directive 2013/33 state that those directives respect the fundamental rights and observe the principles recognised in particular by the Charter, that they seek, in particular, to ensure full respect for human dignity and to promote the application of Articles 1, 4, 6, 7, 18, 19, 21, 23, 24, and 47 of the Charter, and that they have to be implemented accordingly.
46. In those circumstances, the Court has held on several occasions that the principle of non-refoulement is guaranteed as a fundamental right in Article 18 and Article 19(2) of the Charter. (26)
47. That, therefore, is the general background to Directives 2013/32 and 2013/33.
2. The concept of ‘other authorities’ within the meaning of Article 6(1) of Directive 2013/32
48. By its first question, the national court seeks to establish whether Article 6(1) of Directive 2013/32 is to be interpreted as meaning that judicial authorities, such as a court of preliminary investigation, may be regarded as ‘other authorities’ within the meaning of that provision.
49. In that regard, although express reference is made to the concept of ‘other authorities’ in Article 6(1) of Directive 2013/32, that provision does not specify whether it encompasses judicial authorities.
50. The Court has consistently held that, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it forms part. (27) I will therefore consider the interpretation of Article 6(1) of Directive 2013/32 from the literal, contextual and purposive points of view.
51. I begin by observing that, as regards the concept of ‘other authorities’ within the meaning of that provision, VL and the Commission have argued, in their written submissions, for the view that this concept does not exclude judicial authorities. In that regard, the Commission bases its argument on the wording and the objective of Article 6(1) of Directive 2013/32, in particular. As for the public prosecution service, it submits, citing recitals 22 and 26 of that directive in support of its argument, that in cases where it is first to come into contact with persons seeking international protection, it can be regarded as ‘another authority’ for the purposes of Article 6(1) of the directive. (28) The Spanish Government rejects that view and submits that a judicial authority cannot be regarded as ‘another authority’ for the purposes of that provision. It maintains that to regard an examining magistrate as ‘another authority’ would be to alter the system of international protection provided for in Basic Law 4/2000.
(a) The wording of Article 6(1) of Directive 2013/32
52. On the basis of a literal reading of Article 6(1) of Directive 2013/32, the referring court considers that a court of preliminary investigation ruling on the issue of detention, in accordance with Spanish law, is ‘another authority’ which, though not competent to register the application under national law, is entirely able, under Article 6(1) of that directive, to put the matter before the competent authority so that registration can take place no later than six working days after the application is made.
53. This interpretation strikes me, a priori, as reasonable.
54. First of all, it is apparent from a reading of Article 6(1) of Directive 2013/32 that the choice of the expression ‘other authorities’ carries the immediate implication that the EU legislature intended to distinguish between the ‘authority competent under national law’ for registering applications for international protection and ‘other authorities’ which are likely to receive such applications, but are not competent for the registration under national law.
55. Hence, it is clear from that provision that the competent authority for registering applications for international protection is determined by national law. National law lays down the administrative formalities to be completed for the purposes of registering and lodging such applications. As the Commission observed, Member States are required to designate the competent authorities for registration of such applications in the process of transposing Directive 2013/32.
56. In contrast, and contrary to what the Spanish Government appears to maintain, Article 6(1) of that directive makes no reference whatsoever to national law with regard to the identification of the ‘other authorities’ likely to receive applications for international protection, and thus does not provide that the Member States must designate those ‘other authorities’. That provision does not go further than to lay down a requirement, in its second subparagraph, that where an application is made to such ‘other authorities’, ‘Member States shall ensure that the registration shall take place no later than six working days after the application is made’. (29)
57. Secondly, I would observe that the use of the word ‘other’ in Article 6(1) of that directive indicates an intention on the part of the EU legislature not to subject the establishment of such ‘other authorities’ to a numerus clausus. The authorities referred to in the third subparagraph of Article 6(1), namely the police, border guards, immigration authorities and personnel of detention facilities, are mentioned by way of example only.
58. Thirdly, I do not consider that the legislature’s decision to use a broad expression such as ‘other authorities’ in order to cover a multiplicity of authorities can be regarded as referring solely to administrative authorities, as that expression does not prevent Article 6(1) of Directive 2013/32 from encompassing judicial authorities as well. I note, in that regard, that none of the language versions examined seem to indicate otherwise. (30) Accordingly, I do not consider that the wording of this provision provides any basis for the view that judicial authorities are excluded.
59. Nevertheless, I must go on to consider whether or not the context of Article 6(1) of Directive 2013/32, and its objective and legislative history, support that interpretation.
(b) The context and objective of Article 6(1) of Directive 2013/32
60. In my view, the interpretation set out above is the only one capable of ensuring that the objective pursued by Directive 2013/32 is achieved. It is apparent from Article 1 of that directive, read in conjunction with recital 12 thereof, that its objective is to establish common procedures for granting and withdrawing international protection within the European Union.
61. I note that the objective of Article 6(1) of Directive 2013/32 is to ensure that persons wishing to obtain the status of applicants for international protection have effective access to the procedure for examination, and that such access is as rapid and as straightforward as possible, by enabling them to formulate their applications, or in other words express their wish to make an application to the national authority with which they first come into contact, whichever national authority that may be, including, in particular, the authorities responsible for border control and immigration.
62. That provision thus illustrates the general principle that access to the procedure should be rapid and straightforward. Such effective, straightforward and rapid access is to be ensured in a practical rather than a theoretical sense. Indeed, Article 6(2) of Directive 2013/32 provides that ‘Member States shall ensure that a person who has made an application for international protection has an effective opportunity to lodge it as soon as possible’. (31) Furthermore, it is apparent from recital 18 of that directive, in particular, that ‘it is in the interests of both Member States and applicants for international protection that a decision is made as soon as possible on applications for international protection, without prejudice to an adequate and complete examination being carried out’.
63. With that in mind, I cannot see how one can reasonably infer from Article 6(1) of Directive 2013/32 that judicial authorities are excluded from the scope of ‘other authorities … likely to receive applications for international protection’. Their exclusion seems to me to be all the more improbable for the fact that in the present case, as pointed out by the referring court, the authority in question is the only one to which a third-country national has the opportunity to make an application for international protection before being transferred to the removal centre. The referring court also observes that it is apparent from the record of the detention decision of 13 December 2019 that VL was not informed of his right to seek international protection. (32) It is important to emphasise that in any case — even if VL had been informed of that right at the point of detention — it would also have been necessary, in order to ensure effective access to the procedure, for him to be informed and to indicate his wish to seek such protection in the presence of an interpreter of a language he understood. It does not appear however, either from the order for reference or the file available to the Court, that he was. It thus seems to me that it is reasonable to ask whether VL understood the information he was given. In that regard, VL states in his response to the Court’s questions that the only interpreter present when he was detained was a French interpreter, and that he does not understand French. (33)
64. Moreover, I share the Commission’s view that in the context of a very rapid procedure such as that at issue in the present case, where the removal decision is made within 24 hours of the arrival of the persons concerned in Spain, and a hearing takes place before the court of preliminary investigation the next day, (34) that hearing is the appropriate time for an application for international protection to be made, with the assistance of a lawyer and an interpreter, and, as the referring court has pointed out, it may, depending on the circumstances, be the first opportunity for such an application to be made. (35) Furthermore, the fact that the person concerned can make his or her application subsequently, while detained in the removal centre, is no reason to hold that he or she cannot do so before the examining magistrate who determines whether he or she is to be detained.
65. Consequently, it is clear in my view that to permit a Member State to exclude certain judicial or administrative authorities from the scope of ‘other authorities’ — in particular, with reference to the present case, the examining magistrates who are competent under national law to determine whether third-country nationals entering the country illegally are to be detained in a removal centre — would run counter to the objective of Directive 2013/32 and defeat Article 6(1) of that directive.
3. The information necessary for the purposes of lodging the application for international protection and obtaining the benefit of material reception conditions
66. By its second question, the referring court seeks to establish, essentially, whether Article 6(1) of Directive 2013/32 and Article 17 of Directive 2013/33 are to be interpreted as meaning that an authority which receives an application for international protection, but which is not competent for the registration of that application under national law, must provide the applicant with the relevant information as to where and how such an application can be lodged, and must transfer the file to the authority competent for registration, so that the applicant can obtain the benefit of material reception conditions.
67. The Spanish Government indicates, both in its written observations and in its answers to the Court’s questions, that it does not consider Directive 2013/32 to impose an obligation to provide information concerning international protection to all third-country nationals arriving in a Member State.
68. In relation, first, to the obligation to provide the relevant information as to international protection, it is indisputably apparent from the third subparagraph of Article 6(1) of Directive 2013/32, read in conjunction with recital 26 of that directive, that it is incumbent on the ‘other authorities’ likely to receive such applications, but not competent for the registration under national law, to provide persons seeking such protection, including at the border, and in particular in territorial waters, (36) with the relevant information as to how to make their applications.
69. In the present case, as I have explained in the foregoing points of this Opinion, and as was pointed out by the Commission in its observations, and suggested by the referring court itself, the examining magistrates before which the national authorities seek detention orders in respect of third-country nationals entering the country illegally are indisputably authorities to which applications for international protection are likely to be made, just as much as the authorities mentioned, non-exhaustively, in Article 6(1) of Directive 2013/32. Accordingly, where a national authority, such as a court of preliminary investigation, is likely in some cases to be the first authority, or at least one of the first authorities, to which the person has the opportunity to make such an application, it is incumbent on that authority, under Article 6(1) of Directive 2013/32, to provide the relevant information as to the lodging of such applications. (37)
70. Secondly, as regards the obligation to transfer the file to the authority which is competent for registration, I would point out that it is stated in recital 27 of that directive that ‘given that third-country nationals and stateless persons who have expressed their wish to apply for international protection are applicants for international protection, they should comply with the obligations, and benefit from the rights, under [Directive 2013/32] and [Directive 2013/33]. To that end, Member States should register the fact that those persons are applicants for international protection as soon as possible’. (38)
71. In that regard, the Court has held that it follows from Article 6(1) and (2) of Directive 2013/32 that the Member States are, generally, obliged to register any application for international protection made by a third-country national to the national authorities falling within the scope of that directive and that they must then ensure that the persons concerned have an effective opportunity to lodge their application as soon as possible. (39)
72. It is thus self-evident that the obligation to register an application for international protection no later than six working days after it has been made could not be complied with if the ‘other authorities’ which are likely to receive such applications were not able to transfer them to the authorities competent for registration. It follows that the objective of Directive 2013/32, and in particular that of Article 6(1) of that directive, namely to ensure effective, straightforward and rapid access to the international protection procedure, would be seriously undermined.
73. Thirdly, and finally, as regards Article 17(1) and (2) of Directive 2013/33, to which the national court refers in its question, I note that Member States must ensure that material reception conditions are available to applicants when they make their application for international protection and that the measures adopted for those purposes provide an adequate standard of living for applicants, which guarantees their subsistence and protects their physical and mental health. (40)
74. In this regard, as I observed in point 70 of this Opinion, it is apparent from recital 27 of Directive 2013/32 that applicants for international protection should ‘comply with the obligations, and benefit from the rights, [not only] under [Directive 2013/32, but also under Directive 2013/33]’. The objective pursued by Article 17 of Directive 2013/33, which is for applicants to have effective access to material reception conditions, would also be undermined if the authority receiving an application was unable to transfer it to the authorities competent for registration. (41)
75. For all the reasons set out above, I consider that Article 6(1) of Directive 2013/32 and Article 17 of Directive 2013/33 are to be interpreted as meaning that ‘other authorities’ which are likely to receive applications for international protection, but are not competent for the registration of such applications under national law, must provide the applicant with the relevant information as to how such an application can be lodged, and must also transfer the file to the authority competent for registration, so that the applicant can obtain the benefit of material reception conditions.
4. Acquisition of the status of applicant for international protection
76. By its third question, the referring court asks whether Article 26 of Directive 2013/32 and Article 8 of Directive 2013/33 are to be interpreted as meaning that, from the point at which a third-country national indicates, before an authority which is among the ‘other authorities’ referred to in Article 6(1) of Directive 2013/32, an intention to seek international protection, he or she may not be held in detention unless the conditions laid down in Article 8(3) of Directive 2013/33 are met, as he or she is protected by the principle of non-refoulement.
77. It seems to me that, in order to answer this question, it is essential to identify the stages of the process for submitting an application for international protection under the system established by Directive 2013/32.
(a) The stages of the process for submitting an application for international protection: the making and lodging of the application
78. I note that, as regards the initial phase of the procedure for granting international protection, Article 6(1) of Directive 2013/32 draws a clear distinction between the two stages of making and lodging the application. (42) The present case relates to the first of those stages.
(1) The first stage: the making of the application
79. Under Article 6(1) of Directive 2013/32, a third-country national or stateless person makes an application for international protection either to an authority which is competent for the registration of such applications, or to another authority which is likely to receive such applications but not competent to register them. (43)
80. In the context of this first stage, it is necessary to distinguish two separate acts which must take place at different times, namely the making of the application for international protection, properly so called, by the third-country national (in other words, the expression of a wish to seek such protection) before an authority competent for registration or one of the ‘other authorities’ referred to in Article 6(1) of Directive 2013/32, and the registration of that application by the authority which is competent under national law. I note in this regard that recital 27 of that Directive draws a clear distinction between the expression of a wish to apply for international protection and the obligation of the competent authority to register it.
81. As regards the first of those acts, that of making an application or expressing a wish to apply for international protection, (44) recital 27 of Directive 2013/32 states that ‘third-country nationals … who have expressed their wish to apply for international protection are applicants for international protection’. (45) Article 6(1) and recital 27 of Directive 2013/32 thus reflect the intention of the EU legislature for an application for international protection to be deemed to have been made to a competent authority or one of the other authorities referred to in that provision where the person concerned has stated before such an authority that he or she wishes to apply for international protection.
82. The preparatory work relating to Article 6(1) of Directive 2013/32 confirms that interpretation. It is apparent from the Commission’s amended proposal that, ‘to ensure that a person who expresses a wish to request international protection has an effective opportunity to apply, the modified proposal improves the rules on the initial steps to take in the asylum procedure’. (46) It is also apparent from the amended proposal that the act of ‘making’ an application for international protection does not require any administrative formalities, (47) and that the relevant administrative formalities are accomplished when an application is ‘lodged’. (48)
83. As regards the second of the two acts, in other words, registration of the application, this must be done by the authority competent under national law (49) within either three or six working days of the application being made. (50) In that regard, it is apparent from the amended proposal relating to the directive that, in order to guarantee access to international protection, the proposal removed the potential confusion between the basic act of registering the fact that a person is an applicant and the receipt of a complete asylum application (lodging). It is also apparent from the amended proposal that this distinction makes it easier for Member States to comply with the proposed deadline of three days to register an applicant as such after the person concerned has expressed a wish to apply, (51) or, in other words, after he or she has made his or her application. (52)
(2) The second stage: the lodging of the application
84. Subsequently, the person making the application must, once it has been registered by the competent authority, have an effective opportunity to lodge it as soon as possible (Article 6(2) of Directive 2013/32). (53)
85. As regards this second stage, it is apparent from Article 6(4) of that directive that ‘an application for international protection shall be deemed to have been lodged once a form submitted by the applicant or, where provided for in national law, an official report, has reached the competent authorities of the Member State concerned’. (54)
86. It must be borne in mind that the possibility provided for by Article 6(3) of Directive 2013/32, according to which, without prejudice to paragraph 2, Member States may require that applications for international protection be lodged in person and/or at a designated place, only concerns the second stage, or, in other words, the lodging of the application. There is, by contrast, no such requirement in relation to the making of the application, whether this is done before the ‘authority competent’ for registering such applications or one of the ‘other authorities’ referred to in Article 6(1) of that directive.
87. It should be noted, furthermore, that Article 20(2) of Regulation No 604/2013 also provides that ‘an application for international protection shall be deemed to have been lodged once a form submitted by the applicant or a report prepared by the authorities has reached the competent authorities of the Member State concerned’. (55) Thus, in the context of interpreting that provision, the Court has held that an application for international protection is deemed to have been lodged if a written document, prepared by a public authority and certifying that a third-country national has requested international protection, has reached the authority responsible for implementing the obligations arising from that regulation, and as the case may be, if only the main information contained in such a document, but not that document or a copy thereof, has reached that authority. (56)
88. To summarise, in relation to the procedure for examination of applications for international protection, the EU legislature intended to establish two separate stages, namely the making and the lodging of the application. The making of the application is itself subdivided into two steps: the expression of the wish to seek international protection and the registration of that wish. Registration may be effected as soon as the application is intimated, if that is done before the competent authority, or subsequently, if the application is made before one of the ‘other authorities’ referred to in Article 6(1) of Directive 2013/32.
89. I must emphasise that it is essential to distinguish between the making and the lodging of the application in order to determine the exact point, during the first stage of the procedure for granting international protection, at which the person concerned is to be regarded as having acquired the status of applicant. I will now turn to that issue.
(b) The point at which the person concerned is to be regarded as having acquired the status of applicant
90. In the light of the foregoing considerations, the following question arises: does a third-country national who has expressed a wish to apply for international protection before one of the ‘other authorities’ referred to in Article 6(1) of Directive 2013/32 have the status of applicant for international protection?
91. In my view, this question must be answered in the affirmative.
92. First of all, I think it is important to bear in mind that Article 3(1) of Directive 2013/32 provides that that directive applies to all applications for international protection made in the territory, including at the border, and in particular in the territorial waters, of the Member States. In line with that, Article 3(1) of Directive 2013/33 provides that that directive shall apply to all third-country nationals and stateless persons who make an application for international protection on the territory, including at the border, in the territorial waters. The effect of those provisions is that what determines the scope of Directives 2013/32 and 2013/33 is the fact of ‘making’ an application for international protection.
93. Article 2(b) of Directive 2013/32 defines ‘application for international protection’ as a request made by a third-country national or a stateless person for protection from a Member State, who can be understood to seek refugee status or subsidiary protection status. The effect of that provision is that Directive 2013/32 applies to applications falling within that definition.
94. Article 2(c) of Directive 2013/32 goes on to define ‘applicant’ as a third-country national or stateless person who has made an application for international protection in respect of which a final decision has not yet been taken. A similar definition appears in Article 2(b) of Directive 2013/33.
95. Accordingly, I am in complete agreement with the Commission’s view that it is apparent from those provisions that a person acquires the status of applicant for international protection or subsidiary protection upon ‘making’ an application for international protection, or in other words from the moment when that person indicates to an ‘authority competent … for the registration’, or one of the ‘other authorities’ referred to in Article 6(1) of Directive 2013/32, that he or she wishes to apply for international protection. (57)
96. Secondly, it should be noted, as will be apparent from what I have said in points 79 to 83 of this Opinion, that while Article 6(1) of Directive 2013/32 draws a clear distinction between the ‘making’, the ‘presentation’ and the ‘lodging’ of the application, Article 3(1) and Article 2(b) and (c) of that directive do not refer to applications which have been ‘registered’ or ‘lodged’, but to applications which have been ‘made’.
97. Accordingly, neither the ‘registration’ nor the ‘lodging’ of the application can be regarded as the step which confers the status of applicant. There is absolutely nothing to support such a view in the wording, the general scheme or the objective of Directive 2013/32, or the preparatory work relating to it. Recital 27 of that directive states in terms that ‘given that third-country nationals and stateless persons who have expressed their wish to apply for international protection are applicants for international protection, they should comply with the obligations, and benefit from the rights, under [that directive] and [Directive 2013/33]’. (58) As I have already indicated, it is clear from Article 6(1) of Directive 2013/32 that the obligation to register an application for international protection within three or six working days of its being ‘made’ is not an obligation imposed on the person ‘making’ the application, or in other words the ‘applicant’ for such protection, but solely on the national authority competent to register such applications. (59)
98. Thirdly, it is also clear from Article 6(1) of Directive 2013/32 that the intention of the EU legislature was clearly to facilitate the making of applications for international protection at the border of a Member State, and in particular in its territorial waters, on the basis that access to the examination procedure must be effective, straightforward and rapid. Thus, the Member States are, generally, obliged to register any application for international protection made by a third-country national to the national authorities falling within the scope of that directive and must then ensure that the persons concerned have an effective opportunity to lodge their application as soon as possible. (60)
99. For all the reasons I have set out above, my view is that a third-country national has the status of applicant for international protection from the point at which he or she expresses a wish to apply for such protection before one of the ‘other authorities’ referred to in Article 6(1) in Directive 2013/32, for instance (as in the present case) a court of preliminary investigation determining whether he or she is to be detained. A contrary interpretation would undermine the effective access to the procedure for which the EU legislature made provision in that directive. It is settled case-law that the Member States’ obligation, arising from a directive, to achieve the result envisaged by that directive and their duty under Article 4(3) TEU to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation is binding on all the authorities of the Member States including, for matters within their jurisdiction, the courts. (61)
100. That having been said, I propose now to turn to the issue of whether, once the application for international protection has been made to one of the ‘other authorities’ referred to in Article 6(1) Directive 2013/32, the applicant for such protection can only be held in detention on the grounds set out in Article 8(3) of Directive 2013/33.
(c) The consequences which are to flow from the acquisition of applicant status
101. In the present case, the referring court has been called on to rule on the detention of a third-country national for the purposes of enforcing a refoulement decision on the ground that it could not be enforced within the 72-hour period laid down by national law. (62) It is apparent from the order for reference that the third-country national concerned had made his application for international protection before that court within 48 hours of entering Spanish territory.
102. In that regard, first, I note that the Court has held that Article 2(1) of Directive 2008/115, read in conjunction with recital 9, must be interpreted as meaning that ‘that directive does not apply to a third-country national who has applied for international protection within the meaning of [Directive 2005/85/EC, (63)] during the period from the making [(64)] of the application to the adoption of the decision at first instance on that application or, as the case may be, until the outcome of any action brought against that decision is known’. (65)
103. Furthermore, as is apparent from the case-law of the Court, the interpretation of both Directive 2008/115 and Directive 2005/85 (the predecessor of Directive 2013/32), ‘must, as is apparent from recital 24 of the former and recital 8 [(66)] of the latter, be consistent with the fundamental rights and principles recognised, in particular, by the Charter’, (67) Article 18 of which guarantees the right of asylum (68) and the principle of non-refoulement. (69)
104. In relation, in particular, to detention, the Court has held that detention for the purpose of removal governed by Directive 2008/115 and detention of an asylum seeker fall under different legal rules. (70)
105. Secondly, as I have explained above, (71) I take the view that a person acquires the status of applicant from the moment he or she ‘makes’ an application for international protection. Accordingly, it is from that point onward that the circumstances in which the applicant for international protection may be detained are governed by Articles 8 to 11 of Directive 2013/33.
106. In the present case, it follows that even if the circumstances in which VL could be detained were, up to the point when he ‘made’ the application for international protection to the referring court, governed by Directive 2008/115, (72) the provisions which applied to him from that point onward were Article 26(1) of Directive 2013/32 and Article 8(1) of Directive 2013/33. Under those provisions, Member States may not hold a person in detention for the sole reason that he or she has made an application for international protection.
107. Furthermore, as the Court has held, the other paragraphs of Article 8 of Directive 2013/33 place significant limitations on the Member States’ power to detain a person. (73) In particular, Article 8(3) contains an exhaustive list of the various grounds (74) for detention, each of which answers a specific need and is independent of the others. (75) Thus, where one of the grounds for detention applies, Article 8(2) of that directive permits detention to be ordered only when it proves necessary and on the basis of an individual assessment of each case, if other less coercive alternative measures cannot be applied effectively. (76)
108. The grounds for detention include, in particular, that contained in Article 8(3)(d) of Directive 2013/33, which applies where the applicant is detained subject to a return procedure under Directive 2008/115, in order to prepare the return and/or carry out the removal process, and the Member State concerned can substantiate on the basis of objective criteria that he or she has already had the opportunity to access the asylum procedure, and therefore that there are reasonable grounds to believe that he or she is making the application for international protection merely in order to delay or frustrate the enforcement of the return decision.
109. In the present case, with regard, first, to the opportunity to access the asylum procedure, it must be emphasised that while it is for the referring court to determine whether that justification applies, it has indicated clearly in the order for reference that it is apparent from the record of the detention decision of 13 December 2019 that until he appeared before the referring court, VL had not been informed of the possibility of seeking international protection, and also that ‘the court of preliminary investigation before which a third-country national who has entered Spain illegally appears, for the purposes of detention, is … the only authority before which [he] will be able to seek international protection before going to the removal centre’. (77)
110. Secondly, as regards the existence of reasonable grounds to believe that the applicant has made the application for international protection merely in order to delay or frustrate the enforcement of the return decision, neither the order for reference nor the file available to the Court indicates that that is the situation in the present case.
111. In any event, I think it is important to observe that, as is apparent from the case-law of the Court, the mere fact that an asylum seeker, at the time of the making of his or her application, is the subject of a return decision and is being detained on the basis of Article 15 of Directive 2008/115 does not allow it to be presumed, without an assessment on a case-by-case basis of all the relevant circumstances, that he or she has made that application solely to delay or jeopardise the enforcement of the return decision and that it is objectively necessary and proportionate to maintain detention. (78) In that regard, the national authorities bear the burden of proof. (79)
112. Accordingly, I take the view that VL must be regarded as an applicant for international protection from the point in time when he made his application before the referring court, as one of the ‘other authorities’ referred to in Article 6(1) of Directive 2013/32, unless the national authorities concerned prove, on the basis of an assessment of his individual situation, that one of the grounds set out in Article 8(3) of Directive 2013/33 applies, which would not appear, either from the order for reference or the file available to the Court, to be the case.
113. On the contrary, it is apparent from the order for reference that the sole ground on which the court of preliminary investigation ordered VL’s detention was that no reception centre places were available. I must point out that this is not among the grounds in Article 8(3) of Directive 2013/33. Accordingly, it is difficult to accept that an applicant for international protection can be detained on the sole ground that no reception centre places are available. In view of the importance of the right to liberty enshrined in Article 6 of the Charter and the gravity of the interference with that right which detention represents, limitations on the exercise of the right must apply only in so far as is strictly necessary. (80)
114. I therefore suggest that the Court should answer the question referred to the effect that Article 26 of Directive 2013/32 and Article 8 of Directive 2013/33 are to be interpreted as meaning that, from the point in time when a third-country national indicates an intention to seek international protection before one of the ‘other authorities’ referred to in Article 6(1) of Directive 2013/32, the applicant may only be detained in a removal centre on the grounds laid down in Article 8(3) of Directive 2013/33.
VII. Conclusion
115. In the light of all of the foregoing considerations, I propose that the Court should answer the questions referred by the Juzgado de Instrucción nº 3 de San Bartolomé de Tirajana (Court of Preliminary Investigation No 3 of San Bartolomé de Tirajana, Spain) as follows:
(1) Article 6(1) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection is to be interpreted as meaning that a judicial authority, as a court of preliminary investigation, is to be regarded as one of ‘other authorities’ referred to in that provision.
(2) Article 6(1) of Directive 2013/32 and Article 17 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 are to be interpreted as meaning that an authority which receives an application for international protection, but which is not competent for the registration of that application under national law, must provide the applicant with the relevant information as to where and how such an application can be lodged, and must transfer the file to the competent authority for registration, so that the applicant can obtain the benefit of reception measures.
(3) Article 26 of Directive 2013/32 and Article 8 of Directive 2013/33 are to be interpreted as meaning that, from the point in time when a third-country national indicates an intention to seek international protection before one of the ‘other authorities’ referred to in Article 6(1) of Directive 2013/32, the applicant may only be detained in a removal centre on the grounds laid down in Article 8(3) of Directive 2013/33.