VS was arrested in the airport with a false identity document and has applied unsuccessfully for asylum, since it was found that he had an active application in Italy and a Dublin transfer was envisaged. In February 2020, the Migration Board placed him under supervision instead of detention. The transfer to Italy could not be implemented within the deadline and the responsibility was transferred to the Migration Board. On 24 September the Migration Board issued a negative decision and also decided to re-detain the applicant pending implementation of return (in application of the Return Directive). VS appealed against the negative decision and the detention order and requested to be alternatively placed under supervision. By decision on 20 October 2020, the Migration Court of Appeal suspended the execution of the detention order pending outcome of the proceedings.

The Migration Court of Appeal based its reasoning on the caselaw of the CJEU, mainly referring to the fact that an asylum applicant cannot be taken or detained on the basis of the Return Directive as long as he has the right to remain in the Member State in order to exercise the right to appeal against a rejection of an asylum application (judgments of 30 May 2013, Arslan, C-534/11, paragraphs 47 and 49 and 19 June 2018, Gnandi, C-181/16, paragraphs 43 and 45).

The Migration Court of Appeal also reiterated its jurisprudence, namely a decision  where it stated that it is not compatible with Article 8(3)(d) of the Reception Directive to detain an asylum applicant under the Aliens Act if he or she was not detained as part of a return procedure under the Return Directive at the time of his application for asylum.

The conditions in that decision differ from those in the present case in that the VS was not detained at the time of the Migration Board’s current detention decision. Consequently, since an asylum seeker may be detained under Article 8(3)(d) only if he or she is already detained on the basis of a return procedure under the Return Directive, it was not compatible in this case with Article 8(3)(d) to order detention on the basis of the Law on Foreign Nationals.

The Court noted that article 8(3) of the Reception Directive contains an exhaustive list of the grounds on which detention may be justified and the detention of VS is not based on any of the grounds in that list. The Court mentioned that the list is exhaustive and can not be extended, and further annulled the detention order.