JA, national of Bosnia and Herzegovina, lodged an application for international protection in Slovenia, which was rejected by a decision of 11 January 2021 and enforceable on 11 February 2021. During the proceedings the applicant was convicted to a custodial sentence of one year and three months, and an entry ban to the territory for a period of 3 years. He submitted a new application for protection after having served the sentence, when it became evident that he will be expelled, and he was placed in administrative detention. He appealed against the administrative detention order, contesting that national provision does not lay down objective criteria making it possible to assess whether he has expressed his intention to introduce a new request for international protection for the sole purpose of delaying the execution of his removal from the Slovenian territory.
The administrative court ordered on 11 March 2021 that, until delivery of a final decision on the merits of the appeal, the applicant shall be detained at the reception centre for asylum seekers in Ljubljana and referred the case within the urgent preliminary ruling procedure before the CJEU on interpretation of art. 8 (3) first subparagraph, (d) of the recast Reception Conditions Directive as it was transposed into national law.
In that regard, the referring court wonders whether, by providing that a person in the position of JA must already have had the possibility of applying for international protection, Article 84 (1), third indent, of ZMZ-1 provides for an 'objective criterion' within the meaning of the first subparagraph of Article 8 (3) (d) of Directive 2013/33.
The CJEU held that the ground for detention referred to in the first subparagraph of Article 8 (3) (d) of the recast Reception Conditions Directive is subject to two distinct cumulative conditions. It is necessary, on the one hand, for the applicant for international protection to already be the subject of detention for the purposes of removal under Chapter IV of the Returns Directive and, on the other hand, that there are reasonable grounds, based on objective criteria, to believe that the applicant has submitted the application for international protection for the sole purpose of delaying or preventing the execution of the return order.
As regards the objective criteria on the basis of which the competent 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, it is appropriate to note that this provision, although not defining the concept of "objective criteria", provides an example of a criterion which may be invoked by these authorities, namely the fact that the applicant for international protection has already had the possibility of accessing the asylum procedure.
The CJEU answered thus that it must be considered that the fact that the applicant for international protection has already had the possibility of accessing the asylum procedure constitutes one of the objective criteria which the competent national authorities can invoke to justify that there are reasonable grounds to believe that the person concerned has submitted the application for international protection for the sole purpose of delaying or preventing the execution of the return order.
The reopening case before the Administrative Court in Slovenia can be found here.