Request for a preliminary ruling from the Conseil du contentieux des étrangers (Belgium) lodged on 26 January 2024 – X v Commissaire général aux réfugiés et aux apatrides

(Case C-52/24, Tartous) ¹

Language of the case: French

Referring court

Conseil du contentieux des étrangers

Parties to the main proceedings

Applicant: X

Defendant: Commissaire général aux réfugiés et aux apatrides

Questions referred

Does a procedure for examining an application for international protection made at the border or in a transit zone by an applicant who, during that procedure, is detained in a place located geographically in the national territory but treated by legislation as a place at the border fall within the scope of Article 43 of Directive 2013/32/EU? ¹

Does the examination of such an application for international protection made by an applicant who, after the four-week period laid down in Article 43(2) of Directive 2013/32/EU, is automatically admitted to the national territory under national law, but on the basis of a new detention decision remains detained at the same place of detention initially considered to be a place at the border and now categorised by the authorities as a place in the national territory, still fall within the scope of Article 43 of Directive 2013/32/EU?

May the same place of detention, in the same international protection procedure, be initially treated by legislation as a place at the border and, after the applicant has been authorised to enter the national territory owing to the expiry of the four-week time limit or following a decision to conduct a subsequent examination, be regarded as a place in the national territory?

What is the implication of the applicant’s detention in the same place, which is geographically situated in the national territory but which was treated initially as a place at the border and subsequently categorised by the Belgian authorities as a place of detention in the national territory owing to the expiry of the four-week period, for the temporal and substantive competence of the determining authority?

3.1    May a determining authority which initiated an examination of an application for international protection in a border procedure and which allows the four-week time limit laid down in Article 43(2) of Directive 2013/32/EU for taking a decision on that application to elapse or which has previously taken a decision to carry out a subsequent examination, even though all the investigative steps, including the personal interview, were carried out prior to the expiry of the time limit, continue the examination of that application as a matter of priority as provided for in Article 31(7) of that directive, while the applicant remains detained, further to a decision of another authority, in the same place of detention, initially treated as a place at the border, on the ground that his or her detention is necessary ‘in order to determine those elements on which the application for international protection is based which could not be obtained if the applicant were not detained, in particular where there is a risk of the absconding of the applicant’?

3.2    May a determining authority which initiated an examination of an application for international protection in a border procedure and which allows the four-week time limit laid down in Article 43(2) of Directive 2013/32/EU for taking a decision on that application to elapse or which has previously taken a decision to carry out a subsequent examination, without carrying out a personal interview with the applicant within this period, continue the examination of that application as a matter of priority as provided for in Article 31(7) of that directive, while the applicant remains detained, further to a decision of another authority, in the same place of detention initially treated as a place at the border, on the ground that his or her detention is necessary ‘in order to determine those elements on which the application for international protection is based which could not be obtained if the absence of detention, in particular when there is a risk of the absconding of the applicant’?

Is such an application of national legislation compatible with the exceptional nature of the applicant’s detention deriving from Article 8 of Directive 2013/33/EU ¹ and the general objective of Directive 2013/32/EU?

Must Articles 31, 43 and 46 of Directive 2013/32/EU, in conjunction with Article 47 of the Charter, ¹ be interpreted as meaning that the [Council for Asylum and Immigration Proceedings], when hearing an action against a decision taken in a procedure initiated at the border, must raise of its own motion a failure to comply with the four-week time limit?

____________

¹ The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

¹ 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 (OJ 2013 L 180, p. 60).

¹ 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 (OJ 2013 L 180, p. 96).

¹ Charter of Fundamental Rights of the European Union.