Case C-357/09 PPU

Said Shamilovich Kadzoev (Huchbarov)

(Reference for a preliminary ruling from the Administrativen sad Sofia-grad)

(Visas, asylum, immigration and other policies related to free movement of persons – Directive 2008/115/EC – Return of illegally staying third-country nationals – Article 15(4) to (6) – Period of detention – Taking into account the period during which the execution of a removal decision was suspended – Concept of ‘reasonable prospect of removal’)

Summary of the Judgment

1.        Visas, asylum, immigration – Immigration policy – Return of illegally staying third-country nationals – Detention for the purpose of removal – Maximum duration – Calculation – Inclusion of the period of detention completed in connection with a removal procedure commenced before the entry into force of the rules in Directive 2008/115

(European Parliament and Council Directive No 2008/115, Art. 15(5) and (6))

2.        Visas, asylum, immigration – Immigration policy – Return of illegally staying third-country nationals – Detention for the purpose of removal – Maximum duration – Calculation – Exclusion of the period completed in a detention centre under the national and Community provisions on asylum seekers

(European Parliament and Council Directive No 2008/115, Art. 15)

3.        Visas, asylum, immigration – Immigration policy – Return of illegally staying third-country nationals – Detention for the purpose of removal – Maximum duration – Calculation – Decree of deportation against which a judicial review procedure is brought – Inclusion of the period of detention completed during the review procedure

(European Parliament and Council Directive No 2008/115, Art. 15(5) and (6))

4.        Visas, asylum, immigration – Immigration policy – Return of illegally staying third-country nationals – Detention for the purpose of removal – Judicial review – Maximum period of detention having expired – Taking into consideration by the court of reasonable prospects of removal – Excluded

(European Parliament and Council Directive No 2008/115, Art. 15(4) and (6))

5.        Visas, asylum, immigration – Immigration policy – Return of illegally staying third-country nationals – Detention for the purpose of removal – Reasonable prospect of removal – Definition

(European Parliament and Council Directive No 2008/115, Art. 15(4), (5) and (6))

6.        Visas, asylum, immigration – Immigration policy – Return of illegally staying third-country nationals – Detention for the purpose of removal – Maximum period of detention having expired – Possibility of not releasing the detained person immediately – None

(European Parliament and Council Directive No 2008/115, Art. 15(4) and (6))

1.        Article 15(5) and (6) of Directive 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals must be interpreted as meaning that the maximum duration of detention laid down in those provisions must include a period of detention completed in connection with a removal procedure commenced before the rules in that directive become applicable.

(see para. 39, operative part 1)

2.        A period during which a person has been held in a detention centre on the basis of a decision taken pursuant to the provisions of national and Community law concerning asylum seekers may not be regarded as detention for the purpose of removal within the meaning of Article 15 of Directive 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals.

Detention for the purpose of removal governed by Directive 2008/115 and detention of an asylum seeker, in particular under Directive 2003/9 laying down minimum standards for the reception of asylum seekers, Directive 2005/85 on minimum standards on procedures in Member States for granting and withdrawing refugee status, and the applicable national provisions, fall under different legal rules.

However, if an asylum seeker remains in detention for the purpose of removal while asylum procedures opened following his applications for asylum are under way, the period of detention corresponding to the period during which those asylum procedures were under way must be taken into account in calculating the period of detention for the purpose of removal mentioned in Article 15(5) and (6) of Directive 2008/115.

(see paras 45, 47-48, operative part 2)

3.        Article 15(5) and (6) of Directive 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals must be interpreted as meaning that the period during which execution of the decree of deportation was suspended because of a judicial review procedure brought against that decree by the person concerned is to be taken into account in calculating the period of detention for the purpose of removal, where the person concerned continued to be held in a detention facility during that procedure.

If it were otherwise, the duration of detention for the purpose of removal could vary, sometimes considerably, from case to case within a Member State or from one Member State to another because of the particular features and circumstances peculiar to national judicial procedures, which would run counter to the objective pursued by Article 15(5) and (6) of Directive 2008/115, namely to ensure a maximum duration of detention common to the Member States.

(see paras 54, 57, operative part 3)

4.        Article 15(4) of Directive 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals must be interpreted as not being applicable where the possibilities of extending the periods of detention provided for in Article 15(6) of Directive 2008/115 have been exhausted at the time when a judicial review of the detention of the person concerned is conducted.

(see para. 62, operative part 4)

5.        Article 15(4) of Directive 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals must be interpreted as meaning that only a real prospect that removal can be carried out successfully, having regard to the periods laid down in Article 15(5) and (6), corresponds to a reasonable prospect of removal, and that that reasonable prospect does not exist where it appears unlikely that the person concerned will be admitted to a third country, having regard to those periods.

(see para. 67, operative part 5)

6.        Article 15(4) and (6) of Directive 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals must be interpreted as not allowing, where the maximum period of detention laid down by that directive has expired, the person concerned not to be released immediately on the grounds that he is not in possession of valid documents, his conduct is aggressive, and he has no means of supporting himself and no accommodation or means supplied by the Member State for that purpose.

(see para. 71, operative part 6)