The Bouskoura case (C-387/24 PPU), lodged on 4 June 2024 and ultimately addressed by the ECJ on 4 October 2024, brings about significant insights at a point of critical juncture between immigrants’ fundamental rights and procedural matters as regarding asylum seeking and return decisions. The dispute in question involves a third-country national (‘TCN’) who appealed against two detention measures, issued on part of the Dutch State Secretary, claiming the loss of lawfulness of the first measure, and more importantly the failure of the competent authorities to dispose his release within the time limits set under national case-law, to in turn compromise the legitimacy of the second measure.
While on the one hand reaffirming the centrality of the right to liberty as enshrined in Article 6 of the Charter of Fundamental Rights of the European Union (‘the Charter’), accordingly underlining the limits to which national authorities’ power to detain TCNs is subject (C-387/24 PPU, para. 43), the Court essentially legitimized the detention measure whose validity was questioned by the referring court, thus promoting what, at a first glance, might be read as a stricter and more procedural-oriented interpretation of EU law.
This post engages in an analysis of the case, focusing in particular on the EU’s legal framework regulating the condition of non-European citizens seeking international protection, as well as the return procedures irregular TCNs might be subjected to. The relevant pieces of legislation taken into account are reviewed both in their mutual interaction and in their interrelation with national provisions and consolidated case-law governing the same realm.
Main proceedings
The plaintiff of the case, referred to as ‘C’, is a Moroccan national who, on 2 May 2024, was subjected to a detention measure issued by order of the Dutch State Secretary. Prior to the arrangement of the remand in custody, on 1 May 2024, the man had been detained for questioning by Dutch immigration officers after having failed to provide a valid ticket during an inspection on an international train from Belgium to the Netherlands, where he submitted on the same day an application for international protection (Opinion of AG Rantos, paras. 14-15).
Legal substantiation for the measure in question was provided on grounds of Article 59a(1) of the Dutch Law on foreign nationals of 2000, which enables the competent authority to arrange remands in custody for illegally staying TCNs who pose a serious threat to the State’s public order. Moreover, read in conjunction with Article 28(2) of Regulation (EU) No 604/2013 (‘Dublin III Regulation’), according to which “When there is a significant risk of absconding, Member States may detain the person concerned in order to secure transfer procedures […]”, the authority arising from the relevant national provision further extends to the arrangement of detention measures with a view to transferring the person concerned to the Member State (‘MS’) held responsible for evaluating the asylum application, which in the present case was identified with Spain (C-387/24 PPU, para. 14).
Formal request to take charge of C and his application for international protection was sent to Spain on 3 May 2024. The request was submitted in conformity to Article 18(1)(a) of the Dublin III Regulation, which provides that “The Member State responsible under this Regulation shall be obliged to take charge, […], of an applicant who has lodged an application in a different Member State”. However, as C withdrew his application on 6 May 2024, the Spanish competent authorities, after having been informed of the withdrawal, rejected the request to take charge of his situation on 14 May 2024, thus substantially undermining the legal grounds upon which the detention measure was premised (Opinion of AG Rantos, paras. 16-18).
Having accepted the decision of the Spanish authorities without requiring them to review their position, the State Secretary adopted a second detention measure, on 17 May 2024, on grounds of Article 15(1) of Directive 2008/115/EC (‘Return Directive’), subsequently to the decision to arrange C’s return to Morocco and with a view to preventing him from attempting to abscond, insofar as the man had previously refused to cooperate for facilitating the return procedure and presented a severe risk to “evade surveillance and avoid or hamper the preparation of return or the deportation process” (Opinion of AG Rantos, paras. 19; 21).
Despite the lifting of the first detention measure immediately afterwards the implementation of the second, C raised complaints against both decisions before the Roermond District Court (i. e. the referring court), claiming that the 72-hour time elapsed between the loss of lawfulness of the first measure and the adoption of the second did not comply with consolidated case-law of the Administrative Jurisdiction Division of the Council of State (‘AJDCS’), which fixed a 48-hour threshold within which the State Secretary is bound to individuate another legal ground legitimizing the continued detention of a person subjected to remand in custody. As a result, since the aforementioned threshold was exceeded by 24 hours, C should have been released before the issuance of the second measure (C-387/24 PPU, paras. 17-18).
By contrast, the State Secretary maintained the unlawfulness of the first measure not to interfere with the second, to the extent this latter was justified on an independent legal basis. While admitting responsibility for the lack to fulfill the previously mentioned time requirements, therefore arranging a €100 compensation to C in order to repair for the damage caused, the authority also emphasized that, at the time the man raised his complaints before the referring court, the first measure had already been lifted (para. 19).
Questions brought before the Court
What the Roermond Court sought clarification about concerned the procedural dimension of the dispute, and in particular whether the failure to release C within the fixed time limit since the measure he was subjected to was vitiated by unlawfulness constituted a valid ground to require his release, although the measure by virtue of which he was detained at the time the complaint was lodged was justified on a separate and self-standing basis.
More precisely, the referring court reported that both national legislation and case-law did not generally entail the possibility for a legally justified detention measure to be affected by an equal previous measure whose lawfulness had been instead undermined, hence enabling the competent authority to release the addressee of both measures on grounds of that initial unlawfulness. It follows that the referring court could not arrange the release of C solely based on the lack of substantiation occurred in the context of his first detention measure (para. 20).
Nevertheless, the Roermond Court also noted that the AJDCS’ case-law actually envisaged the extraordinary circumstance whereby “a serious infringement of the right to be released” may allow for “depart[ing] from the rule that the unlawfulness of an initial detention measure does not affect the lawfulness of a second detention measure” (para. 25). Such a principle was reflective, according to the referring court, of the provisions established within Article 15(2) of the Return Directive and Article 9(3) of Directive 2013/33/EU (‘Reception Conditions Directive’), both asserting that all TCNs concerned by detention measures found to be unlawful must be immediately released.
Hence, the question submitted to the Court specifically inquired on the meaning of the two above-mentioned articles, along with Article 28(4) of the Dublin III Regulation, and aimed at verifying whether such provisions, read in conjunction with Articles 6 and 47 of the Charter (respectively establishing the right to liberty and the right to an effective remedy and fair trial), were to be interpreted as “meaning that the judicial authority is always obliged to release the detained person immediately if [that] detention has been or has become unlawful at any time during the continuous implementation of a series of successive detention measures” (para. 29).
In light of the reported observations, the referring court leaned towards the immediate release of C as the only solution which could fully compensate for the damage caused by the continued detention, even where the initial measure ceased to be lawful, while also ensuring protection and safeguard of the fundamental rights involved (para. 28).
Additionally, the referring court requested and obtained the case to be dealt with under the urgent preliminary ruling procedure, insofar as the proceedings fell under the scope of regulation of Title V, Chapter III, of the TFEU, which governs on the establishment and maintenance of the Area of Freedom, Security and Justice. Furthermore, the Court’s answer would have constituted the ultimate and necessary step to determine whether the complainant, who had been uninterruptedly kept in custody since the implementation of the first detention measure (i. e. since 2 May 2024), was effectively to be released (para. 31).
The Court’s judgment
As pointed out in the introductory section, the present judgment stands as a quite interesting instance of intertwining between the preservation and respect of fundamental rights on the one hand, and the need to restore procedural clarity on the other.
The first of these two dimensions was recalled in its central importance as the Court stressed how “[…] any detention of a third-country national, whether under Directive 2008/115 […], under Directive 2013/33 […], or under the Dublin III Regulation […], constitutes a serious interference with the right to liberty enshrined in Article 6 of the Charter”, thus implying “the power of the competent authorities to detain third-country nationals (is) strictly circumscribed” (paras. 41; 43). It moreover underscored how the provisions of the Return Directive, the Reception Conditions Directive, and the Dublin III Regulation that were first brought up by the referring court, along with other provisions the Court deemed relevant for the case in question (see para. 45), effectively called for the immediate release of the person subjected to a detention measure, in case the preconditions for lawfulness come to miss (para. 44).
Having clarified this point, the Court dwelt on the specific legal grounds justifying the two detention measures. Recalling what’s been highlighted in the analysis of the main proceedings, the initial measure found legitimation in the Dublin III Regulation, which addresses the transfer of applicants for international protection to the MS deemed responsible for examining the application. Similarities can be easily noted with the subject matter of the Reception Conditions Directive, which intuitively provides regulation on the reception of applicants for international protection, implying the two pieces of legislation to be compatible for constituting a common ground justifying the adoption of a detention measure (para. 47).
By contrast, the Return Directive, upon which the second detention measure was premised, is intended to govern the return procedures resulting from a TCN’s illegal permanence within the territory of a MS, therefore presuming that the person concerned neither does hold the status of refugee, nor is waiting for an asylum application to be examined.
It follows that a detention decision cannot be simultaneously taken on grounds of the Return Directive and either the Reception Conditions Directive or the Dublin III Regulation, insofar as an applicant for international protection is not to be considered as illegally staying within the EU’s territory, thus his/her situation does not pertain to the realm of regulation of the Return Directive (paras. 49-50). In the specific case of C, his status of applicant for international protection decayed the moment he withdrew his application, meaning that the Dutch State Secretary, also in light of the circumstances that led to his initial arrest, could justifiably regard him as an illegally staying TCN, hence being authorized to arrange a detention measure, based on the Return Directive, whose validity was not to be affected in principle by the loss of lawfulness of the first measure.
Even more interestingly, Advocate General (‘AG’) Rantos observed in his Opinion that, while not being implementable whenever an application for international protection is under examination, a return decision could still be pending on the person concerned, with the procedure being practically executed only in case of negative response. This same standpoint, which proves consistent with previous ECJ’s case-law (see C-329/11 PPU, Arslan case), was adopted by the Court, thus agreeing with the point provided by Rantos, to corroborate the view according to which a detention measure based on the Return Directive can be issued subsequently to a detention measure adopted on grounds of the Reception Conditions Directive or the Dublin III Regulation, where this latter ceases to be lawful, to the extent “the objective of that [the Return] directive, […], would be undermined if it were impossible for Member States to prevent the person concerned from automatically securing release by making an application for asylum” (C-387/24 PPU, para. 51; opinion of AG Rantos, para. 61).
Another important consideration derived from AG Rantos’ opinion, which the Court further endorsed in its judgment (paras. 58-59), concerned the alleged infringement of Articles 6 and 47 of the Charter. While the duty of care, arising from the commitment to protect individuals subjected to custody from arbitrariness and deceitful intentions, precludes judicial authorities from purposefully continue a detention under unlawful conditions, resorting then to a monetary compensation (Opinion, para. 75), Rantos remarked how it is not always materially possible to fully compensate a person deprived of his/her liberty from the damage caused by delayed release, insofar as “the failure to comply with the period of release from detention cannot entitle the person concerned to additional days outside a detention center, particularly when the detention has already ceased” (para. 73) and, as for this specific case, when another self-standing detention measure has already been enacted.
Furthermore, the Netherlands Government admitted the possibility for the referring court to require from the State Secretary a greater compensation to be offered C, since the initial €100 reparation was not deemed sufficient to ensure effective remedy and judicial protection (para. 74).
Final Assessment
A first overview of the judgment suggests one of its most remarkable feature to coincide with the prioritization of procedural clarity over the safeguard of the fundamental rights involved.
As regarding this latter dimension, it would certainly be incorrect to assert that the Court acted in total disregard of it, since the limitedness of MSs’ authority to adopt measures depriving TCNs of their liberty was repeatedly stressed.
Nevertheless, it cannot also be questioned how, on this occasion, the commitment at ensuring procedural efficiency has at least partly obscured the consideration given to purely humanitarian concerns (Engel).
Moreover, this final outcome remarks the complex interrelation of Community law with national legislations, demonstrating how aspects of the latter, seemingly at odds with the principles of the former, can ultimately facilitate the effective and appropriate implementation of EU law.
In this case in particular, albeit not being formally included in the question submitted to the Court, the incompatibility of the 48-hour threshold envisaged by the Dutch case-law with the immediate-release clause stemming from the relevant provisions of EU law was indirectly suggested by the referring court when observing that “EU law does not afford the possibility of continuing the detention for administrative reasons or to prepare the adoption of a new detention measure, but requires the immediate release of the third-country national whose detention is unlawful, irrespective of when the lawfulness of that detention is reviewed” (C-387/24 PPU, para. 24).
While a literal approach to the aforementioned observation would unequivocally preclude national legislations from continuing a detention which, at any point in time, has become unlawful, in this specific instance the Court seemed to narrow down the scope of such prohibition by advocating an interpretation of the maintenance of detention as fulfilling what may be considered a preemptive purpose.
The reasoning underlying this conclusion is properly explained in paragraph 52 of the judgment, whereby the Court, drawing from its conclusions in the 2011 Achughbabian case (C-329/11 PPU, para. 30) asserted that “[the] objective of Directive 2008/115 would be compromised if it were impossible for Member States to prevent, by deprivation of liberty, a person suspected of staying illegally from fleeing before his or her situation could even be clarified”. In other words, the Court upheld that the remand in custody of suspected irregular TCNs, whose situation might be dealt with under the Return Directive, can be arranged even with a view to verifying the effective irregularity of their permanence within the State’s territory, therefore ensuring that the application of the Directive itself is necessary and adequate to manage the circumstances in question.
In the specificity of the Bouskoura case, the 48-hour time clause has thus proven functional to assess whether Directive 2008/115 could be rightfully employed to address C’s situation, once his detention could no longer be justified on grounds of the Dublin III Regulation.
In conclusion, the Bouskoura case presented the Court with a twofold challenge: first, to strike a balance between protecting fundamental rights and ensuring procedural clarity on matters concerning the area of freedom, security and justice; and second, to resolve the intricate entanglement between Community law and national provisions prescribing a course of action which seemingly collides with what established by the former. While greater convergence has been attained as for this latter issue, the question of balancing humanitarian considerations and procedural efficiency has proven a major struggle which required, in this contingency, to at least partially prioritize one dimension over the other. Borrowing Engel’s words:
“Whether this guarantee for procedural efficiency also equates to a weakening of fundamental rights protection will have to be elaborated on in future cases in this area”.
Elena Paltrinieri has recently completed her Master’s Degree studies in International Politics and Economics at the Alma Mater Studiorum – University of Bologna, where she also obtained a Bachelor’s Degree in Political, Social and International Sciences. Her current research interests concern the regulation of freedom of movement and residence rights for TCNs within the EU’s legal framework, as well as migration and asylum issues, immigrants’ fundamental rights, and the case-law of the European Court of Justice on this ground.