6 June 2014

An administrative authority cannot extend the detention pending removal of a third country national solely on the basis of their lack of identity papers, the Court of Justice of the European (CJEU) ruled this week. Instead, the authority must reassess the circumstances initially justifying detention and decide whether there is a continued risk of absconding, and whether release or a less coercive alternative to detention is more appropriate.

The CJEU also holds that, for both the initial detention decision and also any extension, the authority must give the detainee reasons in writing that refer to the relevant facts and law.

Regarding the power of a judicial authority to review decisions to extend detention, the  press release by the CJEU states that a court ‘must be able to rule on all relevant matters of fact and of law in order to determine whether the extension is justified’, and this ‘requires an in-depth examination of the facts specific to the individual case’. The court must be empowered to order the release or a less coercive alternative to detention. Importantly, a court’s review ‘can under no circumstances be confined to the evidence adduced by the administrative authority’.

If a detainee pending removal is released, the CJEU insists that they must be provided with written confirmation of their situation, though the authority is under no obligation to issue a residence permit or otherwise authorise their stay.

The case concerns Bashir Mohamed Ali Mahdi, a Sudanese national, who was arrested in Bulgaria for not possessing a valid identity document and detained pending removal. The Bulgarian authorities brought proceedings before a Bulgarian administrative court to extend Mr Mahdi’s initial detention, relying on the risk of absconding and a lack of cooperation with deportation. The court referred questions to the CJEU on the EU Returns Directive concerning procedure, review and grounds for detention pending removal of third country nationals.

This article originally appeared in the ECRE Weekly Bulletin of 06 June 2014.
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