On 24 November 2024, the Minister of Asylum and Migration (hereinafter “the Minister”), imposed the measure of deprivation of liberty on the applicant based on Article 6, third paragraph of the Aliens Act 2000. On 13 December 2024, the applicant lodged an appeal before the Court of the Hague on the grounds that the continuation of her deprivation of liberty from 10 January to 16 January at the Schiphol Judicial Complex (JCS) had been unlawful.

In support of her appeal, the applicant claimed that the JCS was not a specialised detention facility within the meaning of Article 10(1) of the recast Reception Conditions Directive (RCD). The applicant also claimed that her detention had lasted too long and hence did not comply with the requirement of “shortest possible period” of Article 9(1) of the recast RCD. Finally, the applicant argued that the measure was unlawful because she was not kept separate from male foreign nationals in JCS, which is required under Article 11(5) of the recast RCD.

The Minister took the position that JCS is a specialised detention facility and referred to the judgment of the 29 January 2025.

In the present case, the court submitted an urgent request for a preliminary ruling before the Court of Justice of the European Union (CJEU) regarding questions on the meaning of “specialised detention facilities” (Article 10(1) of the recast RCD), “separate housing” (Article 10(1) of the recast RCD) and “shortest possible period” (Article 11 of the recast RCD).

The first question referred to what was to be understood by a “specialised facility”. In this regard, the court referred to Article 10(1) of the recast RCD and Article 16(1) of the Return Directive. Both articles regulate the use of specialised detention facilities, but one refers to applicants for international protection whereas the other refers to people who have had their application refused or who are in an irregular situation. Consequently, the court wondered whether this difference could result in imposing additional requirements on a specialised detention facility as referred to in the recast RCD compared to a specialised facility as referred to in the Return Directive..

In the court’s opinion, since an asylum seeker is a person who might be fleeing detention, and someone who requires rest and preparation for a future interview regarding their status, the requirements for specialised facilities as referred to in the Return Directive should apply as minimum requirements for the assessment of specialised detention facilities as referred to in the recast RCD. The court also considered that the requirements imposed on detention under the recast RCD could therefore be more extensive since in the context of the obligation to cooperate arising from Article 4 of the recast Qualification Directive, Member States must ensure that the applicant is given sufficient opportunity to rest and prepare for the procedure. The court referred the following  first question:

1. Do the same standards/conditions apply to the qualification of 'specialised detention facilities' within the meaning of Article 10 of the recast RCD as to 'specialised detention facilities' as referred to in Article 16 of the Return Directive, or do the standards/conditions for meeting the qualification for 'specialised detention facilities' within the meaning of the Return Directive apply as a minimum to the 'specialised detention facilities' within the meaning of the recast RCD? If these standards/conditions apply as a minimum, what standards/conditions apply additionally?

The second and third questions referred by the court concerned whether a multifunctional building is to be regarded as compatible with the requirement of a specialised detention facility. The court noted that in the department where foreign nationals reside in the JCS was identical in terms of the building and the furnishings to the departments where criminal detainees resided. Moreover, the complex was set up in a way that allowed, if necessary, for the sections for foreign nationals to be used by criminal detainees and vice versa. Regarding applicable regimes, the court noted that the regimes differ, which in practice translates into differences in the mandatory number of hours spent in a locked cell, the possibility of using the yard, the possibility of receiving visitors and the possibility of imposing disciplinary punishments.

The court considered that the standard use of a multifunctional building in which both the detention of asylum seekers and the detention of criminal detainees can take place seemed contrary to the requirement of a specialised detention facility, specifically and solely intended for the detention of asylum applicants. To support this argument, the court observed that in the JCS inspection, it was found that on occasions asylum seekers and criminal detainees were actually in contact, despite efforts to prevent this, and consequently it was questionable that those conditions were as “little equivalent as possible to a prison environment”.

For the abovementioned reasons, the court asked the following second and third questions:

2. Does a Member State act in line with Article 10 of the recast RCD by making standard use of a detention facility where both applicants as referred to in the recast RCD and criminal detainees reside in different departments, and separately from each other, and the departments are identical in terms of building and furnishings and, if necessary, also interchangeable in practice?

3. Does it make any difference to the answer to the previous question whether common facilities are used for both criminal and detention of foreigners and whether contact can take place between the foreigners and criminal detainees? What should be understood by 'staying separately from each other'? Does this mean that no form of contact is allowed? If not, what forms of contact are allowed?

The fourth question concerned whether additional restrictions could be imposed on the asylum applicant, in addition to being obliged to remain in the detention facility. In this regard, the court referred to the CJEU judgment in Landkreis, which established that the obligation of detention should be “limited to what is strictly necessary for the purpose of the detention”, that is, the illegal entry into Schengen Area. The inspection of the JCS revealed that, apart from the detention of people, several additional restrictions were imposed which the court considered were not related to the purpose of the detention, such as being locked in a cell between 22:00 and 8:00 by default. Consequently, the court asked:

4. What is understood by "limited to what is strictly necessary" for the purpose, as determined by the CJEU in Landkreis? Does this mean that if there is no direct relationship between the restriction and the purpose of the detention, namely to prevent illegal entry, the restriction is by definition not permitted?

If the previous question would be answered in the sense that additional restrictions are permitted, the court asked what conditions those restrictions must satisfy. The court considered that the additional restrictions on the rights and freedoms of the applicants in JCS must be provided for by law, must be strictly necessary for the purpose to be served and must be able to withstand the test of proportionality. In view of the case law of the ECtHR, the court also noted that the restriction must serve a legitimate purpose and must be proportionate. The foregoing led the court to the fifth and sixth questions:

5. If a Member State were allowed to impose additional restrictions which are not directly related to the purpose of the detention, what requirements should such restrictions meet, also in view of the need to ensure full respect for the fundamental rights of the foreign national, in particular the right to human dignity, freedom, private and family life and information as described in Articles 1, 6, 7 and 11 of the Charter of Fundamental Rights of the European Union?

6. If a Member State were allowed to impose additional restrictions that are not directly related to the purpose of the detention, how should the court review the lawfulness of such restrictions? Is this a full or a restrained test?

The seventh and eight questions referred to the access to outdoor spaces, as provided in Article 10(2) of the recast RCD. The court considered that a relatively small yard that can only be accessed with the mandatory presence of a penitentiary worker and which is subject to video surveillance appeared to contradict this requirement. Consequently, the court asked:

7. What is meant by outdoor spaces? What requirements must the space(s) meet?

8. Should Article 10(2) of the recast RCD be read as meaning that a Member State is not permitted to restrict access to outdoor spaces? If a Member State is permitted to restrict access to outdoor spaces, what conditions should be attached to the restriction, also in view of the need to guarantee human dignity and full respect for the fundamental rights of the foreign national, in particular the right to human dignity and freedom as referred to in Articles 1, 6 and 7 of the Charter of Fundamental Rights of the European Union?

Questions 9 and 10 referred to the test that must be carried out to examine whether the detention facility qualified as a specialised facility. The court considered that the examination of an institution must take all relevant facts and circumstances into account.

9. What circumstances must the court take into account when assessing whether the detention conditions in the institution are such as to prevent, as far as possible, detention from being equivalent to detention in a prison environment, as is characteristic of prison detention?

10. When determining whether there is a specialised institution, can the court compare the way in which immigration law and criminal detention is organised?

Regarding the separate accommodation of female and male asylum applicants, provided in Article 11(1) and (5) of the recast RCD, the court noted that the use of shared areas by both females and males had to be considered an exception to the general rule that female applicants in detention were to be housed separately from male applicants. However, the inspection at JCS showed that male and female applicants were detained in the same department, and that all common areas were of common use by males and females. The court thus referred the following question:

11. Should Article 11(5) of the recast RCD be read as precluding a policy whereby male and female foreign nationals share all (recreational) spaces within the same closed section by default, even if they do have a lockable cell in that section that they only share with persons of the same sex (except for family members)?

Regarding the period of detention, the applicant claimed that she had been held too long in detention, against the provision set out in Article 9(1). The court referred to Article 43(2) of the Procedures Directive, which states that a Member State has no more than four weeks to decide on an asylum application if the asylum seeker is in detention. The court deduced from this that a period of more than four weeks cannot in any case be regarded as 'as short as possible'. The foregoing brought the court to the twelfth question:

12. What is meant by 'only for as short a period as possible' as referred to in Article 9(1) of the recast RCD with regard to the phase of judicial proceedings? Which facts and/or circumstances play a role in the assessment of that period?