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27/02/2024
FI: The Supreme Administrative Court referred questions to the CJEU for interpretation of the Return Directive with regard to detention pending removal

ECLI
Input Provided By
EUAA IDS
Other Source/Information
Type
Referral for a preliminary ruling
Original Documents
Relevant Legislative Provisions
Return Directive (Directive 2008/115/EC of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals)
Reference
Finland, Supreme Administrative Court [Korkein hallinto-oikeus], Applicant v Detective Inspector B, R2023/945, 27 February 2024. Link redirects to the English summary in the EUAA Case Law Database.
Permanent link to the case
https://caselaw.euaa.europa.eu/pages/viewcaselaw.aspx?CaseLawID=4200
Case history
Other information
Abstract

The case concerned the lawfulness of a third period of detention against the applicant, for the purpose of removal within the meaning of the Return Directive. A, the applicant, was a Moroccan national who illegally entered Finland after disappearing during the asylum procedure in the Netherlands where he was also subject of an entry ban to the Schengen area.


In Finland, the applicant was detained for four consecutive periods: the first from 10 September 2022 to 23 November 2022, the second from 5 December 2022 to 15 March 2023, the third from 11 September 2023 to 18 January 2024 and the fourth, still ongoing, since 7 February 2024. The questions raised before the Supreme Administrative Court were whether the periods of detention shall be added and whether maximum detention period was reached, resulting into the lawfulness of the latest periods of detention.


The Supreme Administrative Court referred questions before the CJEU, registered as C-150/24 [Aroja], under urgent preliminary procedure, as follows:


1. (a)Must Article 15(5) and (6) of the Return Directive 2008/115/EC be interpreted as meaning that all previous periods of detention must be taken into account when calculating the maximum durations of detention referred to therein? If such an obligation does not exist in all cases, what aspects are to be taken into consideration to determine whether the duration of the previous period of detention must be taken into account when calculating the maximum durations?


(b) In particular, how is the situation to be assessed in circumstances such as those in the case in the main proceedings, where, on the one hand, the principal legal basis for detention, namely to secure the removal of an illegally staying third-country national, has remained essentially the same, but where, on the other hand, partly new factual and legal grounds have been put forward in support of the re-detention, the person concerned went, between the periods of detention, to another Member State from where he was returned to Finland, and several months also elapsed between the end of the previous period of detention and the re-detention?


2. (a)Does the second sentence of Article 15(3) of Directive 2008/115/EC preclude national legislation which makes the initiation of a judicial review of the exceeding of the maximum duration of six months subject to a request by the person detained? (b) Must the judicial review referred to in the second sentence of Article 15(3) of Directive 2008/115/EC, which concerns the decision of an administrative authority to exceed the initial maximum duration of detention of six months, be carried out before that maximum duration is reached and, if not, must it in any event be carried out without delay after the decision of that administrative authority?


3. Does the absence of a judicial review as referred to in the second sentence of Article 15(3) of Directive 2008/115/EC, where the maximum duration of detention of six months referred to in Article 15(5) is exceeded, entail an obligation to release the detained person, even if, at the time that belated judicial review is carried out, it is found that all the substantive conditions governing detention have been fulfilled and the case is then being dealt with properly from a procedural point of view? If there is no obligation relating to automatic release in such a situation, what aspects are to be taken into consideration from the point of view of EU law in order to determine the consequences of a judicial review carried out late, in particular in circumstances such as those in the main proceedings?


Country of Decision
Finland
Court Name
FI: Supreme Administrative Court [Korkein hallinto-oikeus]
Case Number
R2023/945
Date of Decision
27/02/2024
Country of Origin
Morocco
Keywords
Detention/ Alternatives to Detention
Return/Removal/Deportation
RETURN