Mr. Arslan was arrested by a Czech police patrol unit and detained. On 2 February 2011, a decision to remove him was issued. On 8 February 2011, Mr. Arslan's period of detention was extended to 60 days on the grounds that, due to his past conduct, it might be presumed that he would obstruct enforcement of the removal decision. On the same day, Mr. Arslan made a declaration for purposes of international protection to the Czech authorities. On 25 March 2011, Mr. Arslan's detention was extended by a further 120 days on the grounds that the extension was necessary to prepare for the enforcement of the decision to remove him, as the procedure relating to his application for international protection was still ongoing. In addition, the extension of the period was also necessary because the application for international protection had been made with the aim of hindering the enforcement of the removal decision. Mr. Arslan brought an action against the decision to extend his detention, claiming that at the time the decision was taken, in view of his application for international protection, there was no reasonable prospect that his removal could still take place within the maximum detention period of 180 days. Upon being dismissed, Mr. Arslan appealed on a point of law, submitting the same arguments to the Supreme Administrative Court of the Czech Republic (referring court). The court stayed the domestic proceedings and referred two questions for preliminary ruling to the CJEU.

The first question concerned whether Article 2(1) of Directive 2008/115 (Return Directive), read in conjunction with recital 9 in the preamble, must be interpreted to mean that the directive does not apply to third-country nationals who have applied for international protection within the meaning of Directive 2005/85 (Qualification Directive).

The CJEU ruled that the Return Directive does not apply to a third-country national who has applied for international protection from the time of the application until the first-instance decision is adopted or until the outcome of any action against that decision is known. To reach this conclusion, the CJEU examined recital 2, Article 2(1), recital 9, and Article 7(1) and (2) of the Return Directive.

The second question concerned whether, in such a case, it is possible to keep a national in detention who has made that application after having been detained under Article 15 of the Return Directive for the purposes of return or removal. The CJEU replied in the affirmative.

The court recalled that detention for the purpose of removal governed by the Return Directive and detention of an asylum seeker under the Qualification Directive and the Reception Conditions Directive fall under different legal rules. However, the court noted that neither the Qualification Directive nor the Reception Conditions Directive harmonized the grounds on which the detention of an asylum seeker might be ordered. Thus, the court ruled that, for the time being, it was for Member States to establish, in full compliance with their obligations under both international and European Union law, the grounds on which an asylum seeker may be detained or kept in detention.

Regarding the grounds for Mr. Arslan's detention, the CJEU held that such circumstances could justify detention even after an asylum application is made. The CJEU ruled that a national provision allowing detention in these circumstances is compatible with Article 18(1) of the Qualification Directive, as the detention results not from applying for asylum but from the individual's behaviour before and during the application. Additionally, the court ruled that detention may be maintained under Article 7(3) of the Reception Conditions Directive if it is objectively necessary to prevent the person from permanently evading return.

The CJEU clarified that although the Return Directive does not apply during the procedure in which an application for asylum is examined, that does not mean that the return procedure is thereby definitely terminated, as it may continue if the application for asylum is rejected. However, the court emphasized that the mere fact that an asylum seeker, at the applying for asylum is the subject of a return decision and is being detained on the basis of Article 15 of the Return Directive does not allow it to be presumed, without an assessment on a case-by-case basis of all the relevant circumstances, that he has made that application solely to delay or jeopardise the enforcement of the return decision and that it is objectively necessary and proportionate to maintain detention.