Language of document : ECLI:EU:C:2014:2096

Case C‑474/13

Thi Ly Pham

v

Stadt Schweinfurt, Amt für Meldewesen und Statistik

(Request for a preliminary ruling from the Bundesgerichtshof)

(Area of freedom, security and justice — Directive 2008/115/EC — Common standards and procedures in Member States for returning illegally staying third-country nationals — Article 16(1) — Detention for the purpose of removal — Detention in prison accommodation — Possibility of detaining a third-country national with ordinary prisoners where he has given his consent)

Summary — Judgment of the Court (Grand Chamber), 17 July 2014

1.        Border controls, asylum and immigration — Immigration policy — Return of illegally staying third-country nationals — Directive 2008/115 — Detention for the purpose of removal — National legislation under which such nationals may be detained in prison accommodation together with ordinary prisoners — Not permissible — Consent of the nationals to such detention — No effect

(European Parliament and Council Directive 2008/115, Art. 16(1), second sentence)

2.        Border controls, asylum and immigration — Immigration policy — Return of illegally staying third-country nationals — Directive 2008/115 — Purpose

(European Parliament and Council Directive 2008/115, recital 17 and Art. 1)

1.        The second sentence of Article 16(1) of Directive 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals must be interpreted as not permitting a Member State to detain a third-country national for the purpose of removal in prison accommodation together with ordinary prisoners even if the third-country national consents thereto.

It is clear from the wording of that provision that it lays down an unconditional obligation requiring illegally staying third-country nationals to be kept separated from ordinary prisoners when a Member State cannot provide accommodation for those third-country nationals in specialised detention facilities. That obligation is not coupled with any exception and constitutes a guarantee of observance of the rights which have been expressly accorded by the EU legislature to those third-country nationals in the context of the conditions relating to detention in prison accommodation for the purpose of removal. The obligation requiring illegally staying third-country nationals to be kept separated from ordinary prisoners, laid down in the second sentence of Article 16(1), is more than just a specific procedural rule for carrying out the detention of third-country nationals in prison accommodation and constitutes a substantive condition for that detention, without observance of which the latter would, in principle, not be consistent with the directive. In this context, a Member State cannot take account of the wishes of the third-country national concerned.

(see paras 17, 19, 21-23, operative part)

2.        See the text of the decision.

(see para. 20)