Case C‑519/20
Landkreis Gifhorn
(Request for a preliminary ruling from the Amtsgericht Hannover)
Judgment of the Court (Fifth Chamber), 10 March 2022
(Reference for a preliminary ruling – Immigration policy – Directive 2008/115/CE – Detention for the purpose of removal – Article 16(1) – Direct effect – Specialised detention facility – Concept – Detention in prison accommodation – Conditions – Article 18 – Emergency situation – Concept – Article 47 of the Charter of Fundamental Rights of the European Union – Effective judicial review)
1. Border controls, asylum and immigration – Immigration policy – Return of illegally staying third-country nationals – Directive 2008/115 – Detention for the purpose of removal – Specialised detention facility – Concept – Specific division of a prison facility – Specific buildings separated from those hosting ordinary prisoners – Included – Conditions – Lack of a closed-prison environment – Respect for fundamental rights and rights provided for in that directive
(Charter of Fundamental Rights of the European Union, Arts 6 and 52(3); European Parliament and Council Directive 2008/115, recital 3 and Arts 15(1), 16 and 17)
(see paragraphs 35-38, 41-46, 57, operative part 1)
2. Border controls, asylum and immigration – Immigration policy – Return of illegally staying third-country nationals – Directive 2008/115 – Detention for the purpose of removal – Specialised detention facility – Appropriate place and conditions of detention – Assessment for the national court – Elements to be taken into consideration
(European Parliament and Council Directive 2008/115, Arts 15(1) and 16(1))
(see paragraphs 48-56)
3. Border controls, asylum and immigration – Immigration policy – Return of illegally staying third-country nationals – Directive 2008/115 – Detention for the purpose of removal – Emergency situations – Detention or extension of detention in a prison facility – Judicial review – Scope – Inspection of conditions being satisfied by such a detention or extension – Included
(Charter of Fundamental Rights of the European Union, Art. 47; European Parliament and Council Directive 2008/115, Art. 18)
(see paragraphs 63-65, 67, operative part 2)
4. Border controls, asylum and immigration – Immigration policy – Return of illegally staying third-country nationals – Directive 2008/115 – Detention for the purpose of removal – Requirement to carry out a detention measure, as a rule, in a specialised detention facility – Exception – Temporary detention in a prison facility – Emergency situation – Third-country nationals detained separately from ordinary prisoners – Whether permissible – Conditions
(Charter of Fundamental Rights of the European Union, Art. 6; European Parliament and Council Directive 2008/115, recitals 13 and 16; Arts 15, 16, 17 and 18(1) and (2))
(see paragraphs 69, 71-74, 78-98)
5. 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 permitting temporary detention in a prison facility, separately from ordinary prisoners – Failure to satisfy the conditions provided by that directive – Obligations of national courts – Obligation to disapply any national provision contrary to EU law
(European Parliament and Council Directive 2008/115, Arts 16(1) and 18(1))
(see paragraphs 99, 100, 102, 103, operative part 3)
Résumé
In August 2020, K, a Pakistani national staying illegally in Germany, was placed in detention for the purpose of removal in the Langenhagen (Germany) division of the Hanover (Germany) prison facility. That detention, which was initially restricted to the end of September 2020, was extended by decision of the Amtsgericht Hannover (Local Court, Hanover, Germany) until November 2020. That court, before which K brought an action against that decision, is uncertain of the lawfulness of K’s detention in view of the requirements of Directive 2008/115. (1) It notes that, during some of the period of detention at issue, the Langenhagen division hosted, in separate buildings, on the one hand, persons detained for the purpose of removal and, on the other hand, ordinary prisoners. The same prison staff deal with both convicted persons and persons detained for the purpose of removal. Furthermore, although that section has its own director, it is attached administratively to the prison facility of Hanover which is entirely under the supervision of the Minister for Justice.
It was in the light of those circumstances that the Local Court, Hanover, decided to refer to the Court of Justice questions for a preliminary ruling on Directive 2008/115. The Court is asked to specify the conditions which a detention facility must satisfy in order to be regarded as a ‘specialised detention facility’, specific to, in accordance with that directive, the detention of third-country nationals awaiting removal, and the conditions and judicial review required where a Member State, by way of derogation, detains those third-country nationals in a prison facility.
Findings of the Court
In the first place, as regards the concept of ‘specialised detention facility’, within the meaning of Article 16(1) of Directive 2008/115, the Court notes that detention conditions in such a centre must display some particular features compared with the conditions for enforcing custodial sentences in prison facilities. The detention of a third-country national for the purpose of removal is intended only to ensure the effectiveness of the return procedure and does not pursue any punitive purpose. Therefore, detention conditions in such a centre must be such that they prevent detention, as far as possible, from resembling a closed-prison environment, suitable for detention for punitive purposes. In addition, both the rights guaranteed by the Charter of Fundamental Rights of the European Union (‘the Charter’) and the rights established in Article 16(2) to (5) and Article 17 of Directive 2008/115 must be respected.
As regards the assessment of the place and conditions of detention in the present case, the Court states that this is a matter for the referring court. That said, the Court points out, in particular, that the administrative connection of a place of detention to an authority which also has powers with regard to prison facilities is not sufficient to rule out the possibility that it is a ‘specialised detention facility’. The same applies with regard to the mere fact that a separate part of a complex in which third-country nationals are detained for the purpose of removal hosts convicted persons, provided, in particular, that separation is effectively ensured. In addition, the referring court must pay particular attention to the organisation of the premises specifically dedicated to the detention of third-country nationals, to the rules which lay down their detention conditions and to the particular classification and duties of the staff responsible for the supervision of the detention and the facility in which that detention takes place.
In the second place, the Court clarifies the circumstances in which a Member State may temporarily provide for the detention of third-country nationals, for the purpose of removal, in a prison facility, thus derogating from the principle of detention in a specialised facility.
First, such a derogation may be justified under Article 18(1) of Directive 2008/115, as long as the Member State concerned cannot reasonably be expected to put an end to the heavy and unexpected burden which continues to weigh on the capacities of its specialised detention facilities, because of the exceptionally large number of third-country nationals subject to a decision ordering their detention for the purpose of removal. A periodic review of the situation may be necessary in that regard. Furthermore, such detention in a prison facility is precluded if it proves to be incompatible with a potential vulnerable situation of the third-country national concerned. In any event, it is also excluded where a place is available in one of the specialised detention facilities of the Member State concerned or where a less coercive measure can be considered. Finally, detention conditions must be distinguished, so far as possible, from the conditions of detention applicable to persons convicted of criminal offences.
Second, under the second sentence of Article 16(1) of Directive 2008/115, detention in a prison facility may, exceptionally, be justified on account of the total, sudden and momentary saturation of all the specialised detention facilities of the Member State concerned, provided that the third-country national concerned is separated from ordinary prisoners and that it is clear that no less coercive measure is sufficient to ensure the effectiveness of his or her return procedure. Detention in a prison facility based on that provision may be ordered only for a short period and ceases to be justified when saturation of specialised detention facilities persists for more than a few days or is repeated systematically and at short intervals. Finally, the fundamental rights guaranteed by the Charter and the rights established in Article 16(2) to (5) and Article 17 of Directive 2008/115 must be respected throughout the entire period of detention.
If the conditions in the situations set out above are not met and the national legislation concerned cannot be interpreted in accordance with EU law, the principle of the primacy of EU law requires the national court to disapply that legislation.
Finally, in the third place, the Court examines the scope of the judicial review to be undertaken by a national court when hearing an application for the detention in a prison facility of a third-country national for the purpose of removal, or an application for the extension of such detention on the basis of Article 18 of Directive 2008/115. In the light of the right to effective judicial review, guaranteed by Article 47 of the Charter, that court must be able to confirm that the conditions laid down by Article 18 have been satisfied. To that end, it must, in particular, be able to rule on all relevant matters of fact and of law, that power not being restricted solely to the matters put forward by the administrative authority concerned.