By Niovi Vavoula
Directive 2008/115/EC on the returns of irregular migrants (or, less neutrally, ‘illegally staying third-country nationals’) has been the subject of fierce criticism and not without good reasons. In an attempt to make the legal framework clearer, the Court of Justice of the European Union (CJEU) has been called to interpret its provisions on numerous occasions (such as Kadzoev, El Dridi, and Achughbabian). In particular, with regard to Article 15 on the detention of irregular migrants prior to their removal the Court has so far explained how the period of detention should be calculated and when there is a ‘reasonable prospect of removal’ (Kadzoev); it has precluded the incarceration of irregular migrants during the return process on the sole ground that they remain on the territory of a Member State even though an order to leave exists (El Dridi), and it has attempted to strike a balance between the right to be heard and the efficiency of the administrative procedure to extend the period of detention (G & R).
In the past few months one has witnessed the re-emergence of the issue of pre-removal detention. The judgment in the case of Mr. Mahdi, released on the 5th June 2014 by the Third Chamber, is central in this regard and raises mixed feelings. On the one hand, the Court provides the national authorities with important guidelines with a view to ensuring –at least to a certain extent- the right of irregular migrants to effective remedies. On the other hand, it seems to lack inspiration when dealing with harder questions that require a constructive approach beyond the mere replication of the provisions of the Directive.
The facts of the case
Mr. Mahdi, a Sudanese national, was arrested in Bulgaria for not possessing a valid travel document. On the same day, an order for deportation was released (Article 8 Returns Directive), accompanied by a ban to enter the national territory (Article 11). The following day, he was put in detention pending removal (Article 15). Though initially he agreed on returning voluntarily to Sudan (Article 7), he changed his mind and due to this non-willingness to return, the Sudanese Embassy refused to issue him a travel document. Yet shortly after, a Bulgarian national requested Mr. Mahdi’s release and swore an affidavit that Mr. Mahdi would be provided with accommodation and his own means of support during his stay in Bulgaria. Although the director of the detention centre suggested that Mr. Mahdi should be released (Article 15(4)) and subjected to a less coercive measure instead of detention (Article 15(1)), his administrative superiors opposed this proposition. As a result, Mr. Mahdi stayed in detention for the initial six-month period (Article 15(5) Returns Directive). After that, in accordance with Bulgarian law the Sofia Administrative Court was called to order an extension of his detention. The Bulgarian Court decided to stay the proceedings and referred to the CJEU an extensive list of questions.
The good news for irregular migrants – Safeguarding their right to effective remedies
The first issue clarified by the Court is whether the decision to extend the period of detention should follow the same requirements as the initial decision to place an irregular migrant in detention (Article 15(2) Returns Directive), meaning that the decision should be in writing and stating the factual and legal reasons. The Court finds that the same requirements apply to both cases since detention and extension of detention are similar in nature. Besides, the disclosure of reasons ensures the effectiveness of the Directive. It adds that these requirements do not apply when the national authorities carry out reviews of third-country nationals’ detention at regular intervals in accordance with Article 15(3). Nevertheless, in cases where the review of the detention and the decision on the further course occur at the same procedural stage, then a written reasoned decision is mandatory.
The second issue relates to the nature and the extent of the control by the national judicial authority when deciding upon whether the initial period of detention should be extended. A similar question was already raised in Arslan, in which case the Court explained that such an examination by the national judicial authority must rely on ‘an assessment on a case-by-case basis of all the relevant circumstances’ (para. 63). However, in the present judgment, the Court goes beyond Arslan: when re-examining the case, the national authority should rule on all relevant factual and legal matters, which entails an in-depth examination of the facts specific to each individual case. For this purpose, the judicial authority must be in the position to take into consideration three sets of material: the facts and the evidence adduced by the administrative authority, the observations on behalf of the third-country national and any other element that is relevant. According to the Court, any other interpretation would deprive the Directive of its effectiveness.
Moreover, the Court makes clear that the judicial authority has the possibility not only to refuse to extend the detention period, but also to substitute detention with a less coercive measure or to order the release of the irregular migrants. This reference is significant since in some Member States the judicial control of the decision to extend detention may not be full, as has been pointed out elsewhere.
As to whether the Returns Directive precludes national legislation according to which the initial six-month period of detention may be extended for the sole reason that the third-country national concerned has no identity documents -and, accordingly, there is a risk of him absconding- the CJEU points out that the lack of identity documents in itself cannot be a ground for extending detention. The referring court should assess the facts of the case and the lack of identity documents is to be taken into consideration among other factors.
The bad news for irregular migrants – Legal uncertainty remains
A further question the CJEU was confronted with was about whether the refusal of the Embassy of Sudan to issue travel documents to Mr. Mahdi could be imputed to him and if so, whether this should be considered a lack of cooperation on Mr. Mahdi’s part, justifying a further extension of his detention for 12 months. The Court notes that according to Article 15(6) an extension of the initial detention period is justified if the removal procedure takes longer than expected due to the personal conduct of the person concerned. If the removal of third-country national is prolonged for other reasons, no causal link is established. Before examining a potential lack of cooperation of the third-country national, the national administrative authority should, however, concentrate its efforts on securing the issuance of travel documents. The Court concludes that the circumstances in the case of Mr. Mahdi may be considered as a lack of cooperation,
‘only if an examination of his conduct during the period of detention shows that he has not cooperated in the implementation of the removal operation and that it is likely that that operation lasts longer than anticipated because of that conduct, a matter which has to be determined by the referring court.’
With this statement, the Court avoids giving a clear-cut answer to this issue. Nonetheless the Court’s view may have significant repercussions for third-country nationals, as it gives wide discretion to national courts to assess the facts of each case. In cases where the third-country national has disclosed his identity, but merely does not agree to be returned, this refusal could be considered as demonstrating a lack of cooperation, resulting in an extension of the detention period. Almost all third-country nationals pending removal could potentially be caught by this interpretation.
The last question referred to the Court was about whether a Member State can be obliged to issue an autonomous residence permit or other authorisation conferring a right to stay to a third-country national on the ground that there is no longer a reasonable prospect of removal. This question was essential in the context of Bulgarian legislation since there is no regularisation mechanism for irregular migrants who cannot be returned.  Thus, a worrying number of migrants are trapped in legal ‘purgatory’, with limited access to fundamental rights. The Court, however, proves little helpful in providing an answer to the question. It merely states that the Directive does not aim at regulating the conditions of residence of irregular migrants who cannot be returned. It refers to Article 6(4) which enables the Member States to grant an autonomous residence permit or other authorisation offering a right to stay for compassionate, humanitarian or other reasons to an irregular migrant. According to recital 12 and Article 6(4) the national authorities should merely provide a written confirmation of their situation and enjoy wide discretion as to the form and format of that confirmation. In this context, a shred of hope for irregular migrants who cannot be returned may come from the recent Commission Communication on the effective EU return policy. The Commission noted that the collection of information on best practices from Member States is on the way, with a view to avoid protracted situations and to ensure that people who cannot be removed are not left indefinitely without basic rights and subject to the risk or being unlawfully re-detained.
Overall assessment: Mixed feelings from the judgment
It is noteworthy that at the outset of the judgment, the Court makes references to fundamental rights. First, it mentions recitals 2 and 11 Returns Directive, according to which irregular migrants should be ‘returned in a humane manner and with full respect for their fundamental rights and dignity’. Though the Court admits that numerous aspects are left to the discretion of Member States on purpose, it observes that according to recital 6 the ending of the illegal stay of third-country nationals must be carried out through a fair and transparent procedure. Besides, it recalls that in the absence of EU rules the Member States remain competent but should ensure that fundamental rights are observed. Interestingly, as the judgment progresses, references to fundamental rights give way to references to the competence of national courts. As a result, some burning issues are left for adjudication at the national level and, therefore, without a clear and unifying answer by the CJEU.
On the bright side, the Court safeguards the right to effective remedies of irregular migrants against procedural abuses by the administrative and judicial authorities in three respects. First, it makes clear that any decision prolonging the period of detention is subject to the requirements prescribed in Article 15(2). Furthermore, the judicial authority ‘supervising’ the extension of detention must re-examine the facts and law in full, taking into consideration the file as a whole along with any other element that may prove useful in reaching a decision. In addition, it precludes the national courts from detaining irregular migrants solely because the third-country national in question lacks identity documents.
Nevertheless, the concept of ‘lack of cooperation’ is not adequately clarified by the Court. Though it is stated that the personal conduct of the third-country national is what matters, national courts were given considerable leeway to assess the facts of each individual case. The Court also does not provide a specific answer on the future of irregular migrants who cannot be removed. It is true that the Directive does not aim at regulating this issue, however given the legal confusion and the arguably poor design of the directive, the Court could have been more constructive in this regard by providing certain guidelines. There was at least one option: the Commission took the view that Member States had to choose between two alternatives, removal from the national territory or granting a residence permit. Yet, by replicating the wording of the directive, the Court clearly wanted to avoid the problem and neither confirmed nor disputed the Commission’s opinion. It appears that the poorly drafted provisions of the directive, which has resulted to it being commonly known as the ‘directive of shame’, show their destructive potential. Therefore, it comes as little surprise that the Court has a hard time trying to live up to the expectations attached to each case and to provide an interpretation that does justice to fundamental rights concerns.