The case concerned an applicant who was found by the police as illegally staying migrant who entered in Czechia and according to SIS II data, he had a ban on entry to Schengen between 2020- November 2023. The applicant gave information on his journey and the expulsion procedure was initiated against him. He did not apply for international protection.
By decision of 25 January 2021, the applicant was subject to administrative expulsion on basis of Article 119 paragraph 1 letter b) points 3 and 4 of the Act on the Residence of Foreigners, administrative expulsion and a ban on entry to EU Member States was imposed for one year. Also, in view of another decision, the applicant was detained the same day pursuant to Article 124 paragraph 1 letter e) of the Act on the Residence of Foreigners for the Purpose of Administrative Expulsion. The detention period was set at 90 days from the moment personal freedom was restricted, i.e. from 24 January 2021.
As reasons for detention, the national administrative authorities considered that if the applicant stated that he had fled from Turkey to Greece due to political persecution, there was nothing to prevent him from applying for international protection there, as it is a democratic country where laws are respected. The Regional Police Prague considered that the applicant’s previous illegal conduct is a reasonable indication that he will repeatedly violate legal regulations, will thwart the enforcement of the decision on administrative expulsion and will continue his journey to Switzerland, as he travelled to the Czech Republic in secret, although he must have been aware, based on the expulsion documents from Greece that he that he had been banned from entering the territory of the Schengen area. The imposition of special measures was for the purpose of securing the expulsion pursuant to Section 123b of the Act on the Residence of Foreigners.
The applicant lacked accommodation in the Czech Republic, a permanent address or financial means for staying or traveling. He did not propose a financial guarantee and considering his financial situation, it was not an option. Also, he did not provide a guarantee that he would comply with the obligation to report to the police in person, nor that he would stay at the designated place. The Ministry of the Interior also stated that the detention decision will not be unreasonably impact the applicant’s private or family life. In conclusion, the Regional Police Prague considered that the return of the applicant to Turkey was possible based on a recommendation from the Ministry of the Interior and despite the measures related to the disease COVID-19, there is an air connection between the Czech Republic and Turkey.
The period of detention of the applicant was subsequently extended by 60 days by the Regional Police Prague decision of 21 April 2021, and the appeal against this decision was rejected by the Municipal Court in Prague by judgment of 17 May 2021. No cassation appeal was lodged. The Municipal Court rejected the appeal and validated the reasons of the Police for the detention measure.
The applicant filed a cassation complaint against the judgment of the municipal court, in which he firstly summarized the course and reasons for his trip from Turkey, and then the course of proceedings in the matter of his detention, administrative expulsion, as well as the procedure of the Ministry regarding his application for international protection. The Ministry of the Interior informed the applicant that his submission is not an application for the granting of international protection in the sense of § 3 paragraph 1 of the same Act. The applicant's claim for protection against illegal intervention by the Ministry, consisting in the failure to initiate proceedings for the granting of international protection, was rejected by the city court by resolution of 10 May 2021.
The Supreme Administrative Court ruled that a binding opinion of an administrative body concerning the possibility of a foreigner to leave the country, on basis that he is not in a real danger in the country of origin in the sense of Article 179, paragraph 1 of Act No. 326/1999 Coll. (non-refoulement), on the residence of foreigners in the territory of the Czech Republic, cannot be based mainly on the fact that this foreigner did not apply for international protection in the Czech Republic, or in the first country of the European Union or in the Dublin system, whose territory he entered, without the administrative authority thoroughly assessing, on the basis of the applicant's statement and relevant information on country of origin, whether the non-refoulement principle would be violated by his return to the country of origin.
The Supreme Administrative Court clarified that although Article 179 paragraphs 1 and 2 of Act No. 326/1999 Coll., on the residence of foreigners in the territory of the Czech Republic, as amended from 31 July 2019, no longer fully includes the non-refoulement principle in the sense of Article 33, Paragraph 1 of the Refugee Convention, this principle continues to be a reason preventing the departure of a foreigner who is a refugee from a material point of view, unless he is a person listed in Article 33 paragraph 2 of the Refugee Convention.
The Supreme Administrative Court annulled the municipal court decision as it found incorrect conclusion that the Police had sufficiently ascertained the facts of the case, about which there are no reasonable doubts. The Supreme Administrative Court stated that the municipal court did not admit as evidence the documents presented by the applicant or marked by him regarding, among other things, his criminal prosecution in Turkey (at that time they were already part of the administrative file, however without a relevant Czech translation), the position of sympathizers of the Gülen movement in this country, the reception of the complainant in Greece, as well as the shortcomings of the asylum system there, and that the municipal court considered them superfluous. The Supreme Administrative Court, on the other hand, was convinced that at least some of these documents could reveal important elements for clarifying the facts of the matter, i.e. for assessing whether the applicant's departure to Turkey is at least potentially possible. In view of all these deficiencies, the challenged judgment of the municipal court and the decision contested by the Regional Police Zagreb must be annulled, and at the same time it is clear that the proceedings in the case of the applicant's detention can no longer be continued, the Supreme Administrative Court dealt with other objections only briefly, however, they could not be completely omitted, not even for the reason that they were not applied in the proceedings before the municipal court.
The Supreme Administrative Court consulted the CJEU Grand Chamber judgement of 8 November 2022, C, B and X v State Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid), Joined Cases C-704/20 and C-39/21, the Czech administrative courts are obliged when reviewing compliance with the conditions of the lawfulness of the detention of a foreigner, as deriving from EU acquis, i.e. also in matters of detention for the purpose of administrative deportation for the purposes of the Return Directive , to take into account ex officio the defects and illegalities of detention decisions that are discovered by the courts or that come to light in the proceedings, even though they are not part of the arguments and claims. Therefore, in proceedings on a cassation appeal initiated by a detained foreigner against a regional court judgment, the general rule according to which cassation objections that the applicant did not raise in the proceedings before the regional court, even if he could have done so, are inadmissible in the sense of Article 104 paragraph 4 of the Civil Code.