Language of document : ECLI:EU:C:2021:127

Case C673/19

M and Others

v

Staatssecretaris van Justitie en Veiligheid,
T

(Request for a preliminary ruling from the Raad van State (Netherlands))

 Judgment of the Court (Fifth Chamber), 24 February 2021

(Reference for a preliminary ruling – Asylum and immigration – Directive 2008/115/EC – Articles 3, 4, 6 and 15 – Refugee staying illegally in the territory of a Member State – Detention for the purpose of transfer to another Member State – Refugee status in that other Member State – Principle of non-refoulement – No return decision – Applicability of Directive 2008/115)

1.        Border controls, asylum and immigration – Immigration policy – Return of illegally staying third-country nationals – Directive 2008/115 – Nationals holding a residence permit or an authorisation conferring a right to stay issued by another Member State – Nationals enjoying international protection in another Member State – Failure to comply with the obligation to travel to that Member State – Principle of non-refoulement – No possibility of taking a return decision against those nationals in the absence of a return destination – Detention for the purpose of transfer to the other Member State – Whether permissible – Limit – Respect for fundamental rights

(European Parliament and Council Directive 2008/115, Arts 3, 4, 6 and 15)

(see paragraphs 32-35, 38-42, 45-48, operative part)

2.        Border controls, asylum and immigration – Immigration policy – Return of illegally staying third-country nationals – Directive 2008/115 – Purpose – Full harmonisation of national rules on the stay of third-country nationals – Not included

(European Parliament and Council Directive 2008/115)

(see paragraphs 43, 44)


Résumé

Three third-country nationals, M, A and T, lodged applications for international protection in the Netherlands although they already had refugee status in other Member States, namely Bulgaria, Spain and Germany respectively. For that reason, the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands) rejected their applications. Having established that they were staying illegally in the Netherlands, the State Secretary ordered them to return immediately to those Member States. Since the persons concerned did not comply, they were detained and then forcibly transferred to the Member States concerned.

M, A and T brought actions before the Rechtbank Den Haag (District Court, The Hague, Netherlands). They claim that without a return decision, within the meaning of the Return Directive, (1) being issued against them beforehand, their detention was unlawful. They therefore seek compensation for the harm suffered as a result of the latter. While the actions brought by M and A were dismissed, T was successful. M and A then lodged appeals before the Raad van State (Council of State, Netherlands), while the State Secretary for Justice and Security also appealed against the judgment upholding T’s action.

It is in that context that the referring court decided to ask the Court whether the Return Directive (2) precludes a Member State from placing in detention a third-country national staying illegally on its territory in order to carry out the forced transfer of that national to another Member State in which he or she has refugee status, where that third-country national has refused to comply with the order given to him to go to that other Member State and it is not possible to adopt a return decision against him. In its judgment, the Court answered that question in the negative.

Findings of the Court

In order to arrive at that conclusion the Court recalled, in the first place, that pursuant to the Return Directive, any illegally staying third-country national must, in principle, be subject to a return decision. (3) The latter must identify the third country to which the person concerned is to be removed, namely his or her country of origin, a transit country or a third country to which he or she decides to return voluntarily and which is prepared to admit that person onto its territory. (4) By way of derogation, where an illegally staying third-country national holds a residence permit in another Member State, he or she must be allowed to return immediately to that Member State rather than issuing a return decision against him or her from the outset. (5) That being the case, where that national refuses to return to the Member State concerned, or where his or her immediate departure is required on grounds of public order or national security, the Member State in which the national concerned is staying illegally must then issue a return decision.

In the second place, the Court noted, however, that it was legally impossible in the present case for the Netherlands authorities to adopt a return decision against the persons concerned, following their refusal to go to the Member States which had granted them refugee status. None of the third countries covered by the Return Directive (6) could constitute a return destination in the present case. In particular, owing to their status as refugees, the persons concerned may not be returned to their country of origin without infringing the principle of non-refoulement. That principle, which is guaranteed by the Charter of Fundamental Rights of the European Union, (7) must be respected by the Member States in the implementation of the Return Directive. (8) Moreover, the Court found that, in such circumstances, none of the standards or procedures laid down in that directive allows the expulsion of those nationals, even though they are staying illegally on the territory of a Member State.

In the third place, the Court observed that the Return Directive is not intended to harmonise in their entirety the rules of the Member States relating to the stay of foreign nationals. In particular, it is not intended to determine the consequences of an illegal stay by a third-country national in respect of whom no return decision to a third country may be issued, in particular where, as in the present case, the application of the principle of non-refoulement renders such a decision impossible. Thus, in such a situation, the decision of a Member State to proceed with the forced transfer of that national to the Member State which has granted him or her refugee status is not governed by the common standards and procedures laid down by the Return Directive. It does not fall within the scope of that directive, but rather within that of the exercise of the sole competence of that Member State in matters of illegal immigration. Consequently, the same is true of the detention of that national, ordered for the purpose of transferring him or her to the Member State concerned. The Court stated, however, that that forced transfer and detention are subject to respect for fundamental rights, in particular those guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, (9) and the Convention relating to the Status of Refugees. (10)


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


2      See, more specifically, Articles 3, 4, 6 and 15 of the Return Directive.


3      See Article 6(1) of the Return Directive.


4      See Article 3(3) of the Return Directive.


5      See Article 6(2) of the Return Directive.


6      See Article 3(3) of the Return Directive.


7      See Article 18 and Article 19(2) of the Charter of Fundamental Rights of the European Union.


8      See Article 5 of the Return Directive.


9      Convention signed at Rome on 4 November 1950.


10      Convention signed in Geneva on 28 July 1951.