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by Dr. Madalina Bianca Moraru, Research Fellow, Centre for Judicial Cooperation, European University Institute

We continue our series of blogs aimed at providing an enriching background to the topics that will be discussed during our annual conference titled “Beyond ‘crisis’? The State of Immigration and Asylum Law and Policy in the EU” , which will take place in Brussels on 10 February 2017.

Immigration detention under the Return Directive (RD) has been the subject of numerous academic studies, reports and practitioners’ manuals. So far the focus has been primarily on the increasing phenomenon of criminalisation of irregular stay/entry (see, for instance, the REDIAL blog commentary of the Celaj case), the relation between immigration detention under the Return Directive and criminal law, or the EU Member States compliance with the most controversial provisions of the Return Directive related to immigration detention. Judicial scrutiny of immigration detention was usually assessed from the European perspective (notably, the standards set by the ECtHR and the CJEU case law). However, the life of a case does not finish in these forums, it is up to the national courts to implement these judgments, which sometimes implies difficult choices to be made by national courts, such as: disapplying national legislation; striking down established administrative practice; re-designing relations between the judiciary and the administration; or challenging judicial approaches of superior national courts.

This contribution focuses on a less researched aspect, namely the role of national courts in the implementation of pre-removal detention measures. In particular, the national courts’ contribution to clarifying the abstract EU concept of ‘risk of absconding’ and its standards of application, their exercise of judicial control over the open ended national definitions of this notion and the detention orders issued by administrative authorities. The contribution will show how instances of vertical judicial interactions (between European supranational courts and domestic courts) and horizontal judicial interactions (among various national courts) have contributed to the enhancement of fundamental rights of detainees in return proceedings by way of: clarifying convoluted EU notions, such as ‘the risk of absconding’; re-shaping national legislation and jurisprudence in conflict with the Return Directive, EU Charter and the ECHR; and re-drawing the division of powers between the judiciary and the administration on the adoption and control of pre-removal detention. This contribution draws on a broader study of domestic judicial scrutiny of pre-removal detention of TCNs across the 28 Member States (REDIAL Research Report 2016/05), which concludes a more general study on judicial implementation of all the Return Directive’s main chapters (REDIAL European Reports) funded by the European Return Fund. This project is accompanied by a Database putting almost 1000 of the national cases used in the research studies at the disposal of all interested persons.

A. Mapping out the issues in the implementation of the ‘risk of absconding’ as a legal ground for pre-removal detention

Perhaps one of the most important instances of judicial interactions in the field of return proceedings has taken place in relation to the clarification and operation of the ‘risk of absconding’. This notion is one of the two exhaustive grounds for pre-removal detention (Article 15(1) RD). Article 3(7) RD defines it as the “existence of reasons in an individual case which are based on objective criteria defined by law to believe that a third-country national who is the subject of return procedures may abscond”. Ever since the negotiation of the RD , the meaning of the ‘risk of absconding’ has been surrounded by confusion (see Lutz and Manansvili, commentary on the Return Directive, in Hailbronner and Thym (eds) EU Asylum and Immigration Law). In spite of several attempts to provide for a precise list of objective criteria as part of the ‘risk of absconding’, the notion was ultimately adopted in general terms, leaving to the Member States considerably margin of discretion in implementation. This abstract and elusive definition of the risk of absconding provided by the RD has contributed to its inconsistent implementation at domestic level, in cases concerning pre-removal detention.

1. Variety of types of domestic legal acts implementing the ‘risk of absconding’ in return proceedings

There is a wide diversity of type of instruments adopted by the Member States for the purpose of implementing the EU notion of ‘risk of absconding’ in return proceedings, ranging from: absence of a domestic legal definition of the risk of absconding, for instance in: Greece, Malta, and the Czech Republic; definition provided in administrative acts: Hungary and Belgium; legislation which refers to a broader notion: Spain (see the Spanish Immigration Act 4/2000 (Article 62), which refers to the risk of “non appearance”); similarly in Austria, the law does not directly refer to the risk of absconding, and objective criteria are additionally developed by the jurisprudence; while other Member States adopted legislative acts/provisions transposing the EU Directive’s notion of ‘risk of absconding’.

2. Variety of national lists of ‘objective criteria’ as part of the content of the ‘risk of absconding’

Article 3 (7) RD leaves the objective criteria for the definition of the risk of absconding to the Member States. In implementing this rule, they follow diverse approaches on the type and number of objective criteria. Some of the Member States’ legislation or administrative practice foresees illegal entry or stay (e.g. Estonia, France, Romania, Slovenia, Spain), lack of residence permit (Slovakia), lack of passport of other equivalent identification documents (Bulgaria), refusal of voluntary departure (Bulgaria, Italy, Sweden, France and Romania) as objective criteria. They can most of the times act as sole legal ground for pre-removal detention, in spite of the CJEU established case law which prohibits pre-removal detention based solely on these grounds (El Dridi; Sagor; Achughbabian; Celaj; Mahdi) (see REDIAL Research Report 2016/05 for the national lists of objective criteria). Other Member States have significantly expanded the scope of the risk of absconding, by including a long list encompassing all possible objective criteria, (including the above mentioned circumstances, see for instance Italy, Netherlands), thus transforming pre-removal detention from a last resort measure, which should be adopted only in exceptional situations, into the norm in return proceedings (e.g. Italy). All this contradicts Recital 6 of the Return Directive, which, by stating that “consideration should go beyond the mere fact of an illegal stay”, excludes, for instance, illegal stay or even illegal entry alone from the list of “objective criteria”, and the jurisprudence of the CJEU which clearly describe pre-removal detention as the measure to be adopted after all the other return related measures (voluntary departure, removal, alternative measures) have failed to achieve the objective of effective return. (see El Dridi, paras. 37-40)

3. Various configurations of domestic judicial competences and powers assessing legality of pre-removal detention

According to Article 15(2) RD, detention can be ordered by either an administrative or a judicial authority. It is usually ordered in the Member States by the police, prosecutor, prefect or another type of administrative body (an important exception is Germany where detention measures are ordered by the judicial authority (civil court)). Should detention be by order of an administrative authority, the Member States are required to subject the detention order to either an automatic speedy judicial review or to grant the third country national the right to ask for a speedy judicial review (Article 15(2) RD). However, not all the Member States secure judicial scrutiny of pre-removal detention (see Hungary where the initial detention order is not subject to judicial control, but only the extension is). And even when the Member States provide for judicial scrutiny, the types of the competent judge vary considerably among the Member States:

• Criminal judge, in Belgium, Spain and recently also in France, Poland (criminal chambers in common courts are competent only in cases of apprehension);

• Civil judge in Germany;

• Justice of the Peace” in Italy (a non-professional judge);

• Administrative courts, with specialised chambers on immigration law (e.g. the Netherlands, Austria, Bulgaria only within the Supreme Administrative Court) or specialised administrative courts (Sweden);

• Administrative courts competent to judge all matters falling under administrative law; (this is the case in the majority of Member States)

• General courts competent to judge all matters (civil, criminal, etc.) (Hungary).

The scope and intensity of judicial control of the lawfulness of pre-removal detention varies considerably among these national courts. The widest powers of control are perhaps held by civil and criminal judges/courts who order the pre-removal detention, unlike administrative courts who only control the detention order taken by the administration. Civil and criminal courts can decide on all aspects of the pre-removal detention cases, including weighing the principle of proportionality, establishing alternative measures and replacing the decision of the administration with that of their own. On the other hand, administrative judges cannot decide the adoption of pre-removal detention, they only control the detention order proposed by the administration. They also have more limited powers of control, for instance, they usually can assess only manifest errors committed by the administrative authorities, they can annul their decisions, if such errors are found, but cannot substitute the decision of the administration with that of their own.

The civil and criminal courts cannot assess ex officio the lawfulness of the return/removal order, as they fall under the competences of administrative courts. However, differences in competences exist also among the criminal courts of the various Member States. For instance, Belgian criminal courts can assess the legality of the removal orders, but they cannot annul them, as this falls under the competences of the administrative court (Aliens Litigation Court). Unlike criminal courts in other countries, they are not deciding on the adoption of the detention order, but only control it, since the detention order is interpreted in Belgium as an accessory to the removal order, which falls under the competences of the Aliens Litigation Court.

The diverse scope and intensity of domestic judicial scrutiny existing among the Member States adds inconsistency to the varied national regimes implementing the confusing EU concept of ‘risk of absconding’. The consequence is a fragmented European framework on pre-removal detention, with different standards of fundamental rights protection. In this context, a certain uniform interpretation and implementation of the risk of absconding, and respect of fundamental rights have been infused by national courts influenced in their decisions by CJEU, ECtHR or other foreign domestic courts. In the following paragraphs a few of national landmark cases achieving this outcome will be commented on (for a full analysis, see the REDIAL Research Report 2016/05).

B. Landmark instances of judicial interactions clarifying the implementation of the ‘risk of absconding’

1. The “Defined by law” requirement clarified by national courts

According to Article 3(7) RD, the definition of the risk of absconding must fulfil two conditions, namely that of including “objective criteria” which are “defined by law.” As previously mentioned, several Member States did not provide for a definition of the ‘risk of absconding’ in their national legislation implementing the Return Directive (Czech Republic, Belgium, Malta, Austria, Greece). Germany used to be one of these countries, but this gap was remedied following a landmark judgment of the German Federal Civil Court. In spite of its reticence to refer to EU secondary law and relevant CJEU jurisprudence, the Federal Civil Court held that the legislature had failed to fulfil the requirements set out by the Return Directive, namely to expressly provide for objective criteria in the domestic legislation (Decision of 18 February 2016 – V ZB 23/15). Following this judgment, the legislature amended section 2(14) of the Residence Act, which now includes concrete objective criteria (see REDIAL German Report on pre-removal detention, p.5). A similar judgment was decided by the Federal Civil Court in relation to the legislator’s failure to define expressly and by law the risk of absconding in the framework of Dublin based detention measures. (Decision of 26/06/2014 – V ZB 31/14 for Dublin cases)

These judgments impacted on the reasoning of domestic courts in other jurisdictions. A regional court from the Czech Republic referred to these judgments of the German Federal Civil Court in its reasoning, finding the detention of an Iraqi male and his two minor children waiting to be transferred under the Dublin III Regulation to be unlawful, and ordered their release due to the absence of a legislative definition of the risk of absconding. On appeal, the Czech Supreme Administrative Court, being of a different opinion than the lower court, decided to address a preliminary reference to the CJEU asking for clarification of the required legal nature of the act that should provide the definition of the risk of absconding. At the moment of writing, only the AG had delivered his Opinion, in line with previous reasoning of Austrian and German highest courts and the Czech regional court. The AG suggested that detention on grounds of a risk of absconding under the Dublin III Regulation is not possible when the objective criteria for the assessment of a significant risk that a foreign national may abscond were not provided by the legislation, even if such criteria follow from the judicial and administrative practice of that Member State. The fact that the EU norms are provided in a Regulation which does not generally require transposition did not exclude, in this particular case, the obligation of the Member States to define the objective criteria in the national legislation. Although the objective of the Dublin III Regulation is different from that of the Return Directive, the guarantees of a risk of absconding ‘defined by law’ should be respected also within the framework of return proceedings. Furthermore, the Member States should provide for clear legal provisions implementing the risk of absconding in the return proceedings, given that unlike detention under the Dublin Regulation, the risk of absconding is provided in an EU Directive which generally requires domestic implementation.

2. Judicial scrutiny of ‘objective criteria’: permitted criteria and the rejection of automatic endorsement of administrative authorities’ explanations

As previously mentioned, there is varied practice at domestic level on the number and type of objective criteria used for the definition of the risk of absconding. First of all there is variation in national lists of objective criteria. Secondly some of these lists are extensive,  including numerous circumstances as objective criteria, while others include catch-all objective criteria (such as illegal entry or stay). In certain jurisdiction which provide an exhaustive list of objective criteria, it suffices to satisfy a single criterion from this list to establish a risk of absconding and consequently to justify the adoption of pre-removal detention (see, for instance, Italy). However, Article 3(7) RD read in conjunction with recital 6, require that “decisions taken under this Directive should be adopted on a case-by-case basis and based on objective criteria”. This implies that even when such “objective criteria” are set in national legislation, the general presumption of the existence of the risk of absconding is not sufficient and individual situations and circumstances must additionally be taken into consideration. (El Dridi, para. 39; Mahdi, para. 70)

Relying on the RD and the relevant CJEU jurisprudence, national courts from several Member States have reversed the practice of the administrative authorities, and re-interpreted flawed national legislation in line with the EU law. For instance, the Regional Court of Bratislava when establishing whether there was a risk of absconding, did not limit itself to an automatic consideration of criteria, such as a lack of a residence permit and a reasonable possibility that the TCN would be subject to an entry ban for a period of more than three years. The court also took into account the nature of criminal offences committed in the past; the fact that the TCN concerned left the asylum facility in violation of the law; and that he went to another country after having applied for asylum in Slovakia (with reference to judgment 9 Sp 99/2013, see also REDIAL Slovakian Report on pre-removal detention). Other domestic courts have taken a firmer position rejecting reliance on the absence of established identity and documents. The Lithuanian Supreme Administrative Court has consistently held that this alone cannot be the basis for detention without carrying out an individual assessment. (No. A-3219-858/2015, judgment of 22 July 2015)

The Swedish Supreme Migration Court refused to consider a refusal of voluntary departure (an objective ground for pre-removal detention under Swedish legislation) as indicating a risk of absconding sufficient to justify a detention order. The justification of the Court was that the detention order would no longer be a last resort measure, but it would be ordered in the majority of cases involving refused asylum seekers (Supreme Migration Court (Sweden), case no. MIG 2008:23 UM1610-08, see more in REDIAL Swedish Report on pre-removal detention)

As regards the use of individual assessment by the judiciary, reference should be made to a ground-breaking judgment of the Supreme Administrative Court from August 2011, which triggered an important jurisprudential change in Bulgaria (Case No. 13868/2010). The Court concluded that Recitals 6 and 13 of the Preamble to the RD require the authorities to take into account several factors when establishing a risk of absconding. Among these, the Court mentioned: the duration of the TCN’s residence in the Republic of Bulgaria; the categories of vulnerable persons; the existence of proceedings under the Law on Asylum and Refugees or proceedings for the renewal of a residence permit or of another authorisation offering a right to stay; the family situation; and the existence of the TCN’s family, cultural and social ties with his/her country of origin. This individual assessment approach was confirmed in a judgment of the Sofia City Administrative Court, delivered after the CJEU preliminary ruling in case of Mahdi (Case No.1535). When assessing whether there was still a risk of absconding, the Court refused to confirm pre-removal detention solely based on the lack of identity documents of the third country national and took into account the fact that a Bulgarian citizen provided accommodation and means of subsistence to the TCN concerned (see CONTENTION Report on Bulgaria).

3. Extending the scope and intensity of judicial control of pre-removal detention

Article 15(2) RD provides for the right to a ‘speedy judicial review’ by national courts of the lawfulness of the pre-removal detention ensured either automatically or by way of third country nationals’ application. Even this minimum requirement is not fulfilled in all Member States (see Hungary). In spite of legislative gaps or limitations on domestic judicial competences of reviewing pre-removal detention, ground-breaking cases of empowerment of national courts have been reached, such as: assessing all aspects of facts and law in cases of pre-removal detention both in first orders or prolongation of detention; carrying out a careful assessment of the proportionality of the administrative detention measure; and establishing themselves alternative measures. These outcomes were possible at the domestic level by way of using the principle of primacy of EU law together with the RD, EU Charter and ECHR and sometimes also judicial interaction techniques, such as: the preliminary reference, disapplication of national law, consistent interpretation.

For instance, Article 15(2) RD together with Article 47 EU Charter and Articles 5(1)(f) and 5(4) ECHR have been invoked by national courts from many Member States in favor of extending their control beyond manifest errors committed by the administrative authorities, and enabling them to carry out a careful assessment of the due diligence obligation of the administration in cases where pre-removal detention was based on the risk of absconding.

As previously mentioned, judicial authorities are generally not competent to assess the lawfulness of the return/removal order within proceedings concerning the legality of the pre-removal detention; or, at least, they cannot do so during the same judicial proceedings (Estonia, Romania). This used to be the case also in the Netherlands. However the Dutch Council of State held that the separateness of the procedures concerning an appeal against a mere return decision and an appeal against pre-removal detention, could result in the situation in which the rights guaranteed in Article 6 of the Charter would be violated as well as the rights contained in Article 5 para. 4 ECHR and Article 15 para. 2 of the RD. The Dutch Council of State thus ordered that appeals against mere return decisions and detention would have to be dealt with simultaneously by the courts from that moment onwards (Council of State, Decision, No, 201209288/1/V3).

The jurisprudence of the ECtHR on Article 5(4) ECHR standards in immigration detention (A.M. and others v France) has recently played a salient role in determining the French legislator to confer extended judicial review powers to the Juge des libertés et de la détention. In this case, the Strasbourg Court identified problems with the limited judicial control of pre-removal detention of children in the French jurisdiction, which determined that the French legislator should amend the legislation in force before the summer of 2016 and should recognise wider powers of judicial review of the legality of pre-removal detention to the French criminal judges (for more details on the concrete powers, see the REDIAL French Report on pre-removal detention). The ECtHR standards of prohibition of arbitrariness in cases of deprivation of liberty have been invoked also by the Czech Supreme Administrative Court explicitly rejecting the deferential review exercised by the Municipal Court in Prague, which held that it is up to the police to decide how to proceed with removal arrangements. Following this 2011 judgment, Czech administrative courts were no longer satisfied with the basic information that the police made some progress in removal arrangements. Instead, they require the police to show concrete steps taken in order to remove a TCN. Moreover, these steps must be included in the case file; otherwise they cannot be used as evidence before the courts (REDIAL Czech Report on pre-removal detention, p. 17.).

Under the impact of the RD provisions and judgment of the superior court (Conseil d’Etat), French courts have departed from a limited understanding of their powers as assessing only manifest errors committed by the administration or automatically endorsing the reasoning of the administration, and expanded their control to “errors of appreciation” committed by the administration (CAA Nancy, 18.02.2013).

The preliminary ruling delivered by the CJEU in the Mahdi case has also played a salient role in reshaping domestic procedural norms on the allocation of powers between the administrative authorities and national courts in the referring jurisdiction, but also in other domestic jurisdictions. One should keep in mind that the CJEU held in Mahdi that the judicial authority has the power to take into account the facts stated and evidence adduced by the administrative authority which has brought the matter before it. This includes any facts, evidence and observations which may be submitted to the judicial authority in the course of the proceedings, but it can also consider ex officio also other circumstances within the ambit of the individual assessment which national courts have the power to exercise.

On the basis of the Mahdi preliminary ruling, the Bulgarian judiciary disapplied the domestic law (Law on Foreign Nationals in the Republic of Bulgaria, Article 46a, para. 4) which says that judicial renewal of detention following the lapse of the first six months takes place in a closed hearing without the participation of the TCN. With few exceptions, the practice of convening an open hearing with the participation of the detained TCN has become stable case law in Bulgaria. This follows the two precedent-setting judgments of the Supreme Administrative Court in the cases Kapinga (Decision of 27 May 2010, in case No. 2724/2010) and Tsiganov (Decision of 8 February 2011 in case No. 14883/2010). In those cases the Supreme Administrative Court invoked inter alia Article 47 EU Charter (the right to a public hearing in particular), together with Article 15 RD, Article 5(4) and Article 13 ECHR (REDIAL Bulgarian Report on pre-removal detention).

This preliminary ruling had impacted also on the Dutch judiciary in regard to the requirements of judicial motivation. The Dutch Council of State has changed its view on the deference of the court controlling the lawfulness of detention. Now, according to the Council of State, the question as to whether less coercive measures can be applied is to be judged in full by the court (Dutch Council of State, Decision No. 201408655/1/V3 – However, according to the REDIAL Dutch Report on pre-removal detention, this judgment had changed little in terms of judicial practice).

EU law and jurisprudence as well as domestic judgments in various Member States inspired national courts to surpass domestic limitations of judicial competences for the purpose of ensuring a consistent interpretation of national legislation and practice. It seems that domestic jurisprudence is slowly converging towards similar standards of interpretation. National courts are more and more aware of their responsibility of European judges, and more inclined to use the principles of individual assessment and proportionality than automatically endorsing the decision of administrative authorities. Even when objective criteria (absconding history, violation of entry ban, failing to cooperate) are invoked by the administrative authorities, some national courts do not automatically endorse the administration justification, but perform an individual assessment and proportionality test of the pre-removal detention (e.g. Sweden, Lithuania). However, these standards of reviews are not yet uniformly shared by national courts across EU Member States, or even within the same Member State (e.g. Bulgaria, Czech Republic, Hungary).

Conclusion

The notion of the ‘risk of absconding’ as a legal ground for pre-removal detention in the Return Directive was clearly meant to have a constraining function, aimed at making return detention an exceptional norm governed by precise rules written in the national legislation. Judging by the lack of uniform national legal instruments defining this notion, its wide definition and the variety of criteria used to define it, the objective of the RD has not been achieved. The open-ended domestic provisions of several Member States and the provision of catch-all criteria such as illegal entry or stay raise concerns regarding the compatibility of the national legislation with the Return Directive (Article 15). Furthermore the provision of objective criteria in legal instruments other than domestic laws could raise issues of conformity not only with Article 3(7) RD, but also with the ECHR-based requirement of legal certainty of domestic norms restricting the right to liberty. Accordingly, conditions of deprivation of liberty should be clearly defined so that a person would be able to foresee the consequences that her action may entail (Medvedyev and others v France).

Either due to the confusing definition of the notion in the RD, and/or the opposition of the Member States to changing their domestic practices and allocation of powers between domestic judiciaries, the European legal and jurisprudential framework of pre-removal detention remains fragmented. The development of similar and consistent standards in the application of pre-removal detention based on the risk of absconding thus falls on the shoulders of national courts. In spite of different national competences and willingness of national courts from EU Member States to control the discretionary power of the competent administrative authorities, the REDIAL project underlined a developing practice of standardisation of the scope and intensity of domestic judicial scrutiny of pre-removal detention among the EU countries, under the positive impact of vertical and horizontal judicial dialogue.

The author would like to thank to the academics and judges who are part of the REDIAL network, who have provided the relevant national information on the basis of which this blog post and the REDIAL Research Reports, Electronic Journals and Database were developed. Last, but not least the author would like to thank Geraldine Renaudiere for her precious work as part of the REDIAL research team and to Prof. Philippe de Bruycker, for his valuable scientific guidance.