J.A., a national of Bosnia and Herzegovina, lodged an application for international protection in Slovenia, which was rejected by a decision of 11 January 2021 and became enforceable on 11 February 2021. During the proceedings, he was sentenced to 1 year and 3 months in prison and received a 3-year entry ban. After serving his sentence and being handed over to the police, he submitted a new application for protection and was placed in administrative detention. He appealed the detention order, arguing that Article 84(1) of the ZMZ-1 does not set objective criteria for assessing whether he intended to submit a new request for international protection solely to delay the execution of his removal from Slovenian territory.

On 11 March 2021, the administrative court ordered that the applicant be detained at the reception centre for asylum seekers in Ljubljana until a final decision on the appeal. The court also referred the case to the Court of Justice of the European Union (CJEU) for an urgent preliminary ruling on the interpretation of Article 8(3), first subparagraph (d) of Directive 2013/33/EU (recast Reception Conditions Directive) as transposed into national law.

The referring court questioned whether, by providing that a person in J.A.'s position must already have had the possibility of applying for international protection, Article 84(1), third indent of ZMZ-1 provides an 'objective criterion' within the meaning of the first subparagraph of Article 8(3)(d) of the recast Reception Conditions Directive.

The CJEU held that the ground for detention in the first subparagraph of Article 8(3)(d) of the recast Reception Conditions Directive is subject to two cumulative conditions. First, the applicant for international protection must already be detained for removal under Chapter IV of the Returns Directive. Second, there must be reasonable grounds, based on objective criteria, to believe that the applicant submitted the application for international protection solely to delay or prevent the execution of the return order.

Regarding the objective criteria on the basis of which the authorities of the Member States must base their reasonable grounds under the first subparagraph of Article 8(3)(d) of the recast Reception Conditions Directive, the court noted that although the provisions does not define the concept, it provides an example of a criterion which may be invoked by these authorities: the fact that the applicant for international protection has already had the possibility of accessing the asylum procedure.

The court indicated that the use in Article 8(3)(d) recast RCD of the term ‘including', indicated an unambiguous purpose by the EU legislature to provide an example of an objective criterion on which the competent national authorities may rely to substantiate that there are reasonable grounds to believe that the applicant is making the application for international protection merely in order to delay or frustrate the enforcement of the return decision.

Thus, the CJEU concluded that the fact that the applicant for international protection has already had the possibility to access the asylum procedure is one of the objective criteria that national authorities can invoke to justify that there are reasonable grounds to believe the person submitted the application solely to delay or prevent the execution of the return order.

The reopening case before the Administrative Court in Slovenia can be found here.