1.

The present request for a preliminary ruling from the Raad van State (Council of State, Netherlands) will give the Court the opportunity to specify whether the provisions of Directive 2008/115/EC ( 2 ) preclude the detention of an illegally staying third-country national with a view to transferring him to another Member State where that third-country national enjoys international protection. I shall propose to the Court that, while a Member State can, in principle, resort to detaining the person concerned in such circumstances, it must do so in compliance with the objectives of Directive 2008/115 and with the Charter on Fundamental Rights of the European Union (‘the Charter’).

2.

The purpose of Directive 2008/115 as defined in Article 1 thereof, headed ‘Subject matter’, is to set out common standards and procedures to be applied in Member States for returning illegally staying third-country nationals, in accordance with fundamental rights as general principles of EU law as well as international law, including refugee protection and human rights obligations.

3.

Article 2 of Directive 2008/115, headed ‘Scope’, provides:

‘1.   This Directive applies to third-country nationals staying illegally on the territory of a Member State.

2.   Member States may decide not to apply this Directive to third-country nationals who:

3.   This Directive shall not apply to persons enjoying the Community right of free movement as defined in Article 2(5) of the Schengen Borders Code.’

4.

Pursuant to Article 3 (‘Definitions’) of Directive 2008/115:

‘For the purpose of this Directive the following definitions shall apply:

…

5.

Article 4 of Directive 2008/115 deals with ‘more favourable provisions’. According to its third paragraph, the directive ‘shall be without prejudice to the right of the Member States to adopt or maintain provisions that are more favourable to persons to whom it applies provided that such provisions are compatible with this Directive’.

6.

Article 5 of Directive 2008/115, headed ‘Non-refoulement, best interests of the child, family life and state of health’, reads as follows:

‘When implementing this Directive, Member States shall take due account of:

and respect the principle of non-refoulement.’

7.

Pursuant to Article 6 of the same directive, headed ‘Return decision’:

‘1.   Member States shall issue a return decision to any third-country national staying illegally on their territory, without prejudice to the exceptions referred to in paragraphs 2 to 5.

2.   Third-country nationals staying illegally on the territory of a Member State and holding a valid residence permit or other authorisation offering a right to stay issued by another Member State shall be required to go to the territory of that other Member State immediately. In the event of non-compliance by the third-country national concerned with this requirement, or where the third-country national’s immediate departure is required for reasons of public policy or national security, paragraph 1 shall apply.

…’

8.

Article 15 of Directive 2008/115, headed ‘Detention’ stipulates:

‘1.   Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when:

Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence.

2.   Detention shall be ordered by administrative or judicial authorities.

Detention shall be ordered in writing with reasons being given in fact and in law.

When detention has been ordered by administrative authorities, Member States shall:

The third-country national concerned shall be released immediately if the detention is not lawful.

3.   In every case, detention shall be reviewed at reasonable intervals of time either on application by the third-country national concerned or ex officio. In the case of prolonged detention periods, reviews shall be subject to the supervision of a judicial authority.

4.   When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately.

5.   Detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a limited period of detention, which may not exceed six months.

6.   Member States may not extend the period referred to in paragraph 5 except for a limited period not exceeding a further twelve months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to:

9.

Under Article 59(2) of the Vreemdelingenwet 2000 (2000 Law on Foreign Nationals) of 23 November 2000 (Stb 2000, No 495), as amended with effect of 31 December 2011 in order to transpose Directive 2008/115 (‘the Vw’), if the documents necessary for the return of a foreign national are available or will be available within a short period of time, the interests of public order are deemed to require the detention of the foreign national, unless the foreign national has had lawful residence on the basis of Article 8, under a to e, and Article l of the Vw.

10.

Under Article 62a(1)(b) of the Vw, the minister is to inform a foreign national who is not a national of a Member State and who does not or no longer has lawful residence, in writing of the obligation to leave the Netherlands of his own accord and of the period within which he must comply with that obligation, unless the foreign national is in possession of a valid residence permit or other authorisation for stay issued by another Member State.

11.

Article 62a(3) of the Vw specifies that the foreign national referred to in Article 62a(1)(b) is to be ordered to return immediately to the territory of the Member State concerned. If this order is not complied with or if the immediate departure of the foreign national is required for reasons of public policy or national security, a return decision is to be issued against him.

12.

Under Article 63(1) and (2) of the Vw, a foreign national who does not have lawful residence and who has not left the Netherlands on his own initiative within the period prescribed by the Vw may be deported, the minister being competent for the deportation.

13.

Under Article 106 of the Vw, if the court orders the lifting of a measure involving deprivation of liberty, or if the deprivation of liberty is already lifted before the application for the lifting of that measure is examined, it may award the foreign national compensation at the expense of the State. Damage is to include the disadvantage which does not consist of financial loss. That provision is to apply mutatis mutandis if the Administrative Jurisdiction Division of the Council of State orders the lifting of the measure of deprivation of liberty.

14.

Under Article A3/2 of the vreemdelingencirculaire 2000 (2000 Circular on foreign nationals), as applicable until 1 January 2019, if the issuing of a return decision is contrary to international obligations (the prohibition of refoulement), the official responsible for border control or the control of aliens is not to issue a return decision.

15.

M, A and T, nationals of third countries, have each applied for international protection in the Netherlands. The Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, ‘the Staatssecretaris’) declared those requests inadmissible by decisions of 28 February, 9 October and 13 June 2018 respectively, because those foreign nationals already enjoyed valid refugee status in Bulgaria, Spain and Germany respectively.

16.

In those decisions, the Staatssecretaris instructed the foreign nationals concerned under Article 62a(3) of the Vreemdelingenwet 2000 (which transposed Article 6(2) of the Directive 2008/115 into Netherlands law) to depart immediately to the territory of the Member State where they enjoyed international protection and, in addition, stated that they risked removal if they did not comply with that instruction. The foreign nationals did not comply with that instruction. The Staatssecretaris subsequently placed them in detention on 28 September, 22 November and 25 October 2018 respectively under Article 59(2) of the Vw in order to ensure their departure to the Member States concerned.

17.

M, A and T lodged appeals with the rechtbank Den Haag (District Court, The Hague, Netherlands). Among other things, they submitted on appeal that the detention measure was unlawful in the absence of a return decision.

18.

In the cases of M and A, the rechtbank Den Haag (District Court, The Hague) considered that the Staatssecretaris had lawfully placed them in detention under Article 59(2) of the Vw without first taking a return decision. According to that court, a return decision is not required for a detention measure based on Article 59(2) of the Vw. Their appeals were therefore declared unfounded.

19.

By contrast, in the case of T, the rechtbank Den Haag (District Court, The Hague) considered, inter alia, that it was unclear whether Article 59 of the Vw provides grounds for detaining third-country nationals in order to ensure their departure to another Member State. That would be possible only if the meaning of the term ‘return’ in Article 59(2) of the Vw differs from its meaning in the rest of Article 59. According to that court, that did not appear to be the intention of the legislature in transposing Directive 2008/115 in Article 59 of the Vw, with the result that a restrictive interpretation of the term ‘return’ in the Vw was called for, corresponding to the definition of that term in that directive. Furthermore, the Staatssecretaris failed to submit a number of documents to the rechtbank Den Haag (District Court, The Hague) on time and in full. The detention of T was therefore held to be unlawful from the moment it was imposed.

20.

M and A appealed to the referring court, as did the Staatssecretaris in the case against T.

21.

Having noted that the disputes at issue concern only the possible right of M, A and T to compensation for the damage caused by their detention, the national court points out that the outcome of those disputes depends on whether Directive 2008/115 precludes the Staatssecretaris from detaining third-country nationals, such as those at issue in the main proceedings, on the basis of Article 59(2) of the Vw, with a view to ensuring their transfer to another Member State, without a return decision within the meaning of Article 62a(3) of the Vw having been adopted.

22.

In those circumstances, the Raad van State (Council of State, Netherlands) decided to stay the proceedings and, by order of 4 September 2019, received at the Court on 11 September 2019, to refer the following question to the Court of Justice for a preliminary ruling:

‘Does Directive 2008/115 …, in particular Articles 3, 4, 6 and 15 thereof, preclude a foreign national who enjoys international protection in another … Member State from being detained under national law, given that the purpose of the detention is removal to that other Member State and, for that reason, an instruction to depart to the territory of that Member State had initially been issued but no return decision was subsequently taken?’

23.

Written observations were lodged by M, T, the Estonian, Netherlands and Polish Governments as well as the European Commission. Oral argument was presented by M, T, the Netherlands Government and the Commission at the hearing of 9 July 2020.

24.

By its question, the referring court seeks in essence to ascertain whether Articles 3, 4, 6 and 15 of Directive 2008/115 preclude a Member State from detaining, under national law, an illegally staying third-country national who benefits from international protection in another Member State, where the purpose of the detention is the transfer of the third-country national in question to that other Member State and where the third-country national was the subject of an instruction to depart immediately to the territory of that other Member State, but not of a return decision within the meaning of Directive 2008/115.

25.

In proposing an answer to the question, I shall first examine whether Directive 2008/115 is applicable in situations such as those described by the referring court. I shall come to the conclusion that it is. Subsequently, I shall turn to the question of the general obligations of a Member State under the directive before addressing Member States’ specific obligations under the directive when it comes to detaining a third-country national.

26.

Directive 2008/115 applies as per Article 2(1) thereof to third-country nationals staying illegally on the territory of a Member State.

27.

It is established by the referring court that the three third-country nationals in question enjoy international protection, each in a different Member State. Therefore, each enjoys a right of stay in the Member State having granted the international protection.

28.

The referring court has also established that the three third-country nationals in question are staying illegally on the territory of the Netherlands. Their stay has not been regularised and the exceptions set out in Article 2(2) of Directive 2008/115 are not applicable.

29.

Consequently, the situation of the three third-country nationals in question falls within the scope of Directive 2008/115 and they are, in principle, subject to the common standards and procedures laid down by that directive.

30.

This raises the question of the obligations, notably for the Kingdom of the Netherlands, under Directive 2008/115, in particular whether that Member State was under an obligation to adopt a return decision, within the meaning of Article 6(1) of Directive 2008/115.

31.

Pursuant to Article 6(2) of Directive 2008/115, third-country nationals staying illegally on the territory of a Member State and holding a valid residence permit or other authorisation offering a right to stay issued by another Member State shall be required to go to the territory of that other Member State immediately. In the event of non-compliance by the third-country national concerned with the requirement, or where the third-country national’s immediate departure is required for reasons of public policy or national security, Article 6(1) of Directive 2008/115 applies.

32.

Since the three third-country nationals in question enjoy international protection, each in another Member State, they have a right to stay in the other Member State in question. They were ordered by the Kingdom of the Netherlands to leave the Netherlands and go to those other Member States but did not comply with the respective orders.

33.

In such a situation, Article 6(1) of Directive 2008/115 obliges a Member State to adopt a return decision. However, the Kingdom of the Netherlands was legally precluded from adopting such a decision, as I shall now explain.

34.

‘Return’ means the process of a third-country national going back to (1) his or her country of origin, (2) a country of transit in accordance with EU or bilateral readmission agreements or other arrangements or (3) another third country to which the third-country national concerned voluntarily decides to return and in which he or she will be accepted. ( 4 )

35.

In the absence of a country of transit (2) or of another third country to which the persons concerned would voluntarily return (3), the only option under the directive was a return to the countries of origin.

36.

The referring court has established, however, that a return decision to the countries of origin was not possible, as it would have violated the principle of non-refoulement. Indeed, as stated in Article 5 of Directive 2008/115, when implementing that directive, a Member State must take into account the principle of non-refoulement, a principle which is, moreover, guaranteed by Article 18 and Article 19(2) of the Charter.

37.

We can therefore conclude at this stage that although the case at issue falls within the scope of application of Directive 2008/115, the Kingdom of the Netherlands was not under an obligation to adopt a return decision, pursuant to Article 6(1) of that directive. ( 5 )

38.

That interpretation is in line with the observations of all the parties to the proceedings and appears to be the predominant view in legal doctrine. ( 6 )

39.

One could, however, envisage a different interpretation of Article 6(1) and (2) of Directive 2008/115.

40.

In the event that the third-country national does not comply with the requirement to go to the territory of the other Member State immediately, it would appear that the full effectiveness of Article 6(2) of Directive 2008/115 would best be assured by the adoption of a return decision to another Member State. This would strengthen the procedure provided for in Article 6(2) of the directive. It would also mean altering the meaning of ‘return’ as defined in Article 3(3) of the directive as regards certain specific situations.

41.

Such a procedure would have the enormous advantage of being clear and readily applicable in practice. There would be a return decision pursuant to Article 6(1) of Directive 2008/115, meaning that all the provisions of the directive relating to that procedure, including and above all the provision on detention (Article 15) could be applied without any obstacle.

42.

The non-binding but nevertheless instructive ‘Return handbook’ of the Commission seems to me to point in that direction, when it is stated that ‘if a third-country national does not agree to go back voluntarily in accordance with Article 6(2) to the Member State of which he/she holds a permit, Article 6(1) becomes applicable and a return decision, providing for direct return to a third country should be adopted. It is not possible to pass back the person to the other Member State with force, unless … in certain circumstances when return/removal to a third country is not possible and the Member State that issued the permit agrees to take the person back’. ( 7 )

43.

Two things do not emerge from the passage just cited. First, it is not clear whether such a procedure is mandatory or optional for the Member State. Secondly, the Commission does not specify whether this procedure would occur on the basis of Article 6 of Directive 2008/115 (which would be contrary to the wording of Article 3(3) of the directive) or whether this would be a procedure governed by national law.

44.

On this basis, I would add a word of caution. Attractive as though such an approach may appear, I find it difficult to reconcile with the clear wording of Article 3(3) that is to say, return means return to a third country. ( 8 ) Moreover, I have significant doubts that the introduction of a ‘return procedure between the Member States’ reflects the will of the legislature. Furthermore, it would give rise to the question whether such an interpretation would be valid only for cases such as the one at issue in the main proceedings where a Member State is prevented from adopting a return decision to a third-country because of the principle of non-refoulement or whether it should also apply to all cases falling within the scope of Article 6(2) of the directive, that is to say where the third-country national holds a valid residence permit or other authorisation offering a right to stay issued by another Member State. ( 9 )

45.

For that reason, I would not propose to the Court the interpretation just outlined. I would rather adhere to the wording of Article 3(3) and Article 6(1) and (2) of Directive 2008/115 and reaffirm my proposal outlined in points 31 to 38 above.

46.

This leaves us with the question whether the provisions of Directive 2008/115 preclude the Kingdom of the Netherlands from detaining the third-country nationals in question, with a view to transferring them to the Member State where they enjoy international protection.

47.

The dedicated provision in Directive 2008/115 dealing with detention is Article 15. This provision prescribes in detail the conditions under which Member States may resort to detaining a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process.

48.

In the absence of a return procedure, however, that provision does not apply to the case at issue. Again, all the Kingdom of the Netherlands intended to do is to transfer the third-country nationals to a Member State, not to return them to their country of origin outside the EU.

49.

The Court has accepted the detention of a third-country national on the ground of an illegal stay in two situations beyond the scope of Article 15 of Directive 2008/115, ( 10 ) namely where the return procedure established by Directive 2008/115 has been applied and the national is (still) staying illegally on that territory with no justified ground for non-return (‘the Achughbabian situation’) ( 11 ) and where the return procedure has been applied and the person concerned re-enters the territory of that Member State in breach of an entry ban (‘the Celaj situation’). ( 12 ) ( 13 )

50.

Neither of the situations described in the preceding paragraph is applicable here. In both the Achughbabian and Celaj situations, a return procedure had been applied by the Member State in question, albeit without success in Achughbabian. In the present case, however, the Kingdom of the Netherlands (rightly) did not apply a return procedure, but a transfer procedure to another Member State.

51.

I would have difficulties in admitting that in such a situation –though within the general scope of Directive 2008/115, even if not subject to the full execution of all of its provisions – it would not, as a matter of principle, be possible for a Member State to detain a third-country national, subject of course to conditions. ( 14 )

52.

Directive 2008/115 does not, in my view, categorically and in principle, preclude the detention of the third-country nationals concerned.

53.

As regards the conditions of a detention, since, as has been established above, the case at issue falls within the scope of Directive 2008/115 (by virtue of Article 2 of that directive), any detention measure which a Member State may wish to impose has to comply with the objective of the directive and with its principles. ( 15 )

54.

It follows from Article 1 of Directive 2008/115, as well as recitals 2 and 24 of the directive, that the policy of that directive is to be pursued with full respect for the human rights and the dignity of the third-country nationals concerned and that the directive respects the fundamental rights and principles recognised, in particular, by the Charter.

55.

I have previously argued that the directive seeks to ensure a balance between the rights and interests of the Member States in relation to controlling the entry, stay and removal of foreign nationals and the individual rights of the persons concerned. ( 16 ) With regard to the latter, Directive 2008/115 is intended to take into account the case-law of the European Court of Human Rights relating to the right to liberty and ‘The Twenty Guidelines on Forced Return’ adopted by the Committee of Ministers of the Council of Europe on 4 May 2005, ( 17 ) to which Directive 2008/115 refers in recital 3. ( 18 )

56.

I have moreover previously argued that a national provision which falls within the ambit of Directive 2008/115 implies the implementation of EU law within the meaning of Article 51(1) of the Charter and must comply with general principles of EU law, including the fundamental rights enshrined in the Charter. ( 19 )

57.

Article 52(1) of the Charter stipulates that any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and must respect the essence of those rights and freedoms and be subject to the principle of proportionality. In so far as the Charter contains rights which correspond to rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), Article 52(3) of the Charter provides that the meaning and scope of those rights must be the same as those laid down by that convention, while specifying that EU law may provide more extensive protection. For the purpose of interpreting Article 6 of the Charter, account must therefore be taken of Article 5 of the ECHR as the minimum threshold of protection. ( 20 )

58.

According to the European Court of Human Rights, any deprivation of liberty must be lawful not only in the sense that it must have a legal basis in national law, but also in the sense that lawfulness concerns the quality of the law, implying that a national law authorising the deprivation of liberty must be sufficiently accessible, precise and foreseeable in its application in order to avoid all risk of arbitrariness. ( 21 )

59.

On the basis of these findings, I can make the following observations.

60.

A Member State which seeks to transfer an illegally staying third country national to another Member State where that stay is no longer illegal undoubtedly contributes to furthering not only the objectives of Directive 2008/115 but also those of the European Union’s asylum and immigration policy in general.

61.

Next, we need to examine the question whether the Member State in question respects the fundamental rights of the third-country national concerned. Given that Article 15 of Directive 2008/115, though (as seen above) not applicable here, seeks to take account of and incorporate the case-law of the Strasbourg Court with respect to Article 5 of the ECHR, which is the functional equivalent of Article 6 of the Charter, ( 22 ) we can draw on the terms of that provision as a source of inspiration, in so far as Article 15 of Directive 2008/115 protects the fundamental rights and interests of the person to be detained. ( 23 )

62.

Detention may be used only for the purpose of the transfer procedure to the other Member State. It should be used only as a last resort, that is to say where there is a risk of absconding or where the third-country national concerned avoids or hampers the transfer procedure. Furthermore, any detention should be for as short a period as possible, maintained only for as long as removal arrangements are in progress and executed with due diligence.

63.

This implies that a detention measure can be ordered only on a case-by-case basis and only on the basis of the individual conduct of the individual concerned.

64.

In addition to this, it must be ordered by administrative or judicial authorities in writing, with reasons being given in fact and in law and judicial review must be provided for. Detention must be reviewed regularly and, in the case of prolonged periods, subject to the supervision of a judicial authority.

65.

It is for the referring court to analyse the compatibility of the national provisions in question with fundamental rights, on the basis of the Charter, read in conjunction with the ECHR, including the case-law referred to above.

66.

If the referring court finds that these principles have been complied with, then the detention was lawful in so far as it was not precluded by Directive 2008/115.

67.

In the light of all the foregoing considerations, I propose that the Court should answer the question referred by the Raad van State (Council of State, Netherlands) as follows:

Articles 3, 4, 6 and 15 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals do not preclude a Member State from detaining, under national law, an illegally staying third-country national who enjoys international protection in another Member State, where the purpose of the detention is the transfer of the third-country national in question to that other Member State and where the third-country national was the subject of an instruction to depart immediately to the territory of that other Member State, but not of a return decision within the meaning of Directive 2008/115, provided that Articles 6 and 52 of the Charter on Fundamental Rights of the European Union are complied with, which is for the national court to verify.