Mr. Mahdi, a Sudanese national, was arrested on 9 August 2013 at a border post in Bregovo, Bulgaria. He had no identity documents. By an order made on the same day, he was subject to a coercive administrative measure for deportation and a measure ‘banning a foreign national from entering Bulgaria'. The following day, and pursuant to those orders, he was taken to the Busmantsi detention facility pending the implementation of the coercive administrative measures, until the time when documents permitting him to travel outside Bulgaria were obtained. On 12 August 2013, Mr. Mahdi signed, before the Bulgarian administrative authorities, a statement consenting to return voluntarily to Sudan. Subsequently, during a meeting with an embassy official, the identity of Mr. Mahdi was confirmed, but the official refused to issue him identity documents, apparently because he was unwilling to return to Sudan. Mr. Mahdi then stated to the Bulgarian authorities that he did not wish to return voluntarily to Sudan. Upon a Bulgarian national, Ms. Ruseva, swearing an affidavit that Mr. Mahdi be provided with accommodation and his own means during his stay in Bulgaria and requesting provisional release, the Director of the Directorate for Migration requested that his superior apply less coercive measures to Mr. Mahdi. The superior official rejected the request, arguing that Mr. Mahdi had not entered Bulgaria legally, was not in possession of a residence permit, had been refused status, and had committed a criminal offense by crossing the border between Bulgaria and Serbia other than at the prescribed crossing points. No action was brought either against the detention order or against the refusal to replace that order with less restrictive measures. Upon an initial six-month period of detention, the Director submitted a letter to the Sofia Administrative Court (referring court) requesting to order, of its own motion, an extension of Mr. Mahdi's detention, based on Article 46a(3) and (4) of the Law on foreign nationals (review by the court of the stay of third country nationals in a detention facility for more than six months owing to obstacles to their removal from Bulgaria). The Sofia Administrative Court stayed the domestic proceedings and submitted questions for preliminary ruling to the CJEU.The CJEU accepted the proposal to deal with the request under the urgent procedure. 

Question 1(a) concerned whether Article 15(3) and (6) of Directive 2008/115 (Return Directive) read in the light of Articles 6 and 47 of the EU Charter, must be interpreted to mean that the decision adopted by a competent authority, on expiry of the maximum period allowed for the initial detention of a third-country national, on the further course to take concerning the detention, must be in the form of a written measure that includes the reasons in fact and in law for that decision.

The CJEU answered in the affirmative. The court highlighted that a written detention measure is required by paragraph 2 of Article 15 of the Return Directive and that it must be understood as necessarily covering all decisions concerning extension of detention, given that detention and extension of detention are similar in nature and in both cases the person concerned must be in a position to know the reasons for the decision taken concerning him. The court held that any other interpretation of Article 15(2) and (6) of the Return Directive would mean that challenging the legality of a decision extending detention would be more difficult for a third-country national than challenging the legality of an initial detention decision, which would undermine the fundamental right to an effective remedy.

Question 1(b) and (c) concerned whether Article 15(3) and (6) of the Return Directive, together with Articles 6 and 47 of the EU Charter, must be interpreted to mean that the ‘supervision' by a judicial authority handling an application to extend the detention of a third-country national must allow that authority to decide, case by case, on the merits of whether the detention of the third-country national concerned should be extended, whether detention may be replaced with a less coercive measure or whether the person should be released. The authority thus has the power to consider the facts and evidence presented by the administrative authority, as well as any observations the third-country national may submit.

The CJEU observed the wording and the content of Article 15(6),(4), (5), and (1) and conclude that a judicial authority deciding on an application to extend detention must be able to rule on all relevant matters of fact and of law to determine, pursuant to those articles, whether an extension of detention is justified, which requires an in-depth examination of the matters of fact specific to each individual case. Where the detention that was initially ordered is no longer justified in the light of those requirements, the judicial authority having jurisdiction must be able to substitute its own decision for that of the administrative authority or, as the case may be, the judicial authority which ordered the initial detention and to take a decision on whether to order an alternative measure or the release of the third-country national concerned. To that end, the judicial authority ruling on an application for an extension of detention must be able to consider both the facts stated and the evidence adduced by the administrative authority, as well as any observations submitted by the third-country national. Furthermore, that authority must be able to consider any other element that is relevant for its decision, should it so deem necessary. Accordingly, the powers of the judicial authority in the context of an examination can under no circumstances be confined just to the matters adduced by the administrative authority concerned.

The CJEU dealt with questions 2 and 3 jointly, which asked if Article 15(1) and (6) of the Return Directive must be interpreted to preclude national legislation pursuant to which an initial six-month period of detention may be extended solely because the third-country national concerned has no identity documents and, accordingly, there is a risk of his absconding.

It ruled that the fact that the individual concerned has no identity documents cannot, in itself, be a ground for extending detention under Article 15(6) of the Return Directive. The court held that it was for the referring court to assess the facts surrounding the situation of Mr. Mahdi to determine, in the re-examination of the conditions laid down in Article 15(1) of the Return Directive, whether, as the Director suggested, a less coercive measure may be applied effectively to that person and, should that not prove possible, to determine whether there continues to be a risk of that person absconding. The court emphasized that it is only in the case of a risk of absconding that the referring court may take into account the lack of identity documents.

Next, the CJEU dealt with Question 4(a), which asked if Article 15(6)(a) of the Return Directive must be interpreted to mean that a third-country national who, in the circumstances such as those of the case, has not obtained an identity document that would have made it possible for him to be removed from the Member State concerned, demonstrates a ‘lack of cooperation' within the meaning of that provision.

The court ruled that such a country national may be regarded as having demonstrated a lack of cooperation only if an examination of his conduct during the period of detention shows that he has not cooperated in the implementation of the removal operation and that it is likely that the operation lasts longer than anticipated because of that conduct. A matter that fell to the national courts to determine. The court emphasized that Article 15(6) Returns Directive requires that before it considers whether the third-country national concerned has shown that he has failed to cooperate, the authority concerned should be able to demonstrate that the removal operation is lasting longer than anticipated, despite all reasonable efforts: that means that, in the case before the referring court, the Member State in question should have sought, and should still actively be seeking, to secure the issue of identity documents for the third-country national.

The CJEU stressed that it was for the referring court (and in general, for national courts) to determine the specific factual elements of each case, in particular in this case, whether the lack of identity documents can be attributed solely to the fact that Mr Mahdi had withdrawn the statement concerning his voluntary return, or a detailed examination of the facts surrounding the whole initial detention period.          

Lastly, the court dealt with Question 4(b) which concerned if Article 15 of the Return Directive must be interpreted to mean that a Member State can be obliged to issue an autonomous residence permit or other authorisation conferring a right to stay to a third-country national who has no identity documents and who has not obtained such documentation from his country of origin, after a national court has released the person concerned on the ground that there is no longer a reasonable prospect of removal within the meaning of Article 15(4) of that directive.

The CJEU held that a Member State cannot be obliged to do so, because the objective of the directive is not to regulate conditions of residence on the territory; however, that Member State must, in such a case, provide the third-country national with a written confirmation of his situation pursuant to Article 6(4) of the Returns Directive. The court clarified that Member States enjoy wide discretion concerning the form and format of such written confirmation.